28 TAC §§3.9201 - 3.9212
The Texas Department of Insurance (TDI) proposes new Subchapter
KK, §§3.9201- 3.9212, concerning exclusive provider benefit plans.
These proposed sections are necessary to define an exclusive provider benefit
plan (EPP), provide operational details and regulatory requirements. An EPP
is only statutorily authorized for use in three circumstances: (1) by issuers
who contract with the Texas Health and Human Services Commission (HHSC) to
provide health services under the Texas Children's Health Insurance Program
(CHIP) pursuant to Chapter 62, Texas Health and Safety Code, (2) to provide
Medicaid managed care pursuant to Chapter 533, Texas Government Code, or (3)
pursuant to the statewide rural health care system (the System) to sponsor,
arrange for, or provide health care services in rural areas, as provided by
Chapter 845, Texas Insurance Code. An EPP is a managed care plan that an insurer
may issue which requires that persons covered under those programs receive
services from a network of exclusive providers.
The Legislature created CHIP, the Medicaid managed care program and the
System to assist populations in obtaining health care benefits and endowed
them with added flexibility because these particular programs face unusual
significant financial challenges and other feasibility issues. TDI proposes
these rules to offer an alternative plan that meets the legislative goal of
providing health care benefits to these particular populations.
Chapter 62 of the Health and Safety Code provides that HHSC may direct
the Texas Department of Health to enter into contracts with insurance companies,
health maintenance organizations, or other entities including a primary care
case management provider network, to provide health care services to eligible
CHIP recipients. Sec. 62.054 states that TDI shall, at the request of HHSC,
provide any necessary assistance with the development of the CHIP plan and
shall develop any necessary rules, in consultation with HHSC.
Chapter 845 of the Texas Insurance Code establishes a statewide rural health
care system to sponsor, arrange for, or provide health care services for programs
in rural areas that are not subject to certain other statutorily-created assistance
programs (including CHIP). The System is a non-profit corporation authorized
to contract with or otherwise arrange for local health care providers to deliver
health care services in areas designated as rural.
Chapter 533 of the Texas Government Code provides for implementation of
the Medicaid managed care program. HHSC contracts with managed care organizations
to provide a health care delivery system to recipients of Medicaid. House
Bill 2292 (at Section 2.29) passed in the 78th Legislature, adds §533.0025
which requires HHSC to determine the most cost-effective means to accomplish
delivery of services for Medicaid and includes exclusive provider organization
models as an alternative for this purpose. Therefore, an exclusive provider
plan may be utilized to provide Medicaid managed care.
As previously stated, these proposed sections are necessary to define an
EPP as well as provide entity characteristics, operational details and regulatory
requirements. An EPP blends characteristics found in both indemnity and HMO
plans. Therefore, operational and entity characteristics are important aspects
in determining what regulatory and compliance requirements govern an EPP.
This proposed subchapter provides a roadmap of what an EPP is, how it works,
when it can be used, and what regulatory requirements govern.
Proposed §3.9201 sets out the applicability of this subchapter. Proposed §3.9202
sets forth various definitions. Proposed §3.9203 discusses specifics
of the policy and method for calculating the schedule of premium rates for
insured coverage. Proposed §3.9204 explains requirements for health care
provider contracts. Proposed §3.9205 addresses compliance requirements
for limited provider networks. Proposed §3.9206 explains that issuers
must establish and maintain quality improvement and utilization management
programs. Proposed §3.9207 states that issuers are subject to credentialing
criteria requirements for health care providers. Proposed §3.9208 requires
that issuers must comply with network accessibility and availability requirements.
Proposed §3.9209 sets out mandatory disclosure requirements. Proposed §3.9210
describes the complaint system available to insureds or providers concerning
health care services, including a process for the notice and appeal of complaints,
and proposed §3.9211 describes the process for filing a complaint with
the department. Proposed §3.9212 sets out requirements for an internal
appeals system which issuers must implement and maintain.
Kim Stokes, Senior Associate Commissioner, Life, Health and Licensing,
has determined that for each year of the first five years the proposed sections
will be in effect, there will be no fiscal impact to state and local governments
as a result of the enforcement or administration of the rule. There will be
no measurable effect on local employment or the local economy as a result
of the proposal.
Ms. Stokes has determined that for each year of the first five years the
sections are in effect, the public benefits anticipated as a result of the
proposed sections will be to offer a practical, cost-efficient approach for
providing health care to Medicaid, CHIP and/or rural populations. Any economic
cost to persons required to comply with the sections will be the result of
the legislature's passage of SB 445 (establishing CHIP in the 76th Legislature),
HB 2292 (establishing an exclusive provider organization plan as a cost-effective
means for providing Medicaid managed care in the 78th Legislature) and SB
1246 (establishing the System in the 75th Legislature) and not as a result
of the enforcement or administration of this rule. Even if this proposal were
to result in an adverse economic effect on small or micro businesses, it is
neither legal nor feasible to waive the requirements of the subchapter for
small or micro businesses, as that waiver would contravene the effect and
intent of SB 445, HB 2292 and SB 1246.
To be considered, written comments on the proposal must be submitted no
later than 5:00 p.m. on August 11, 2003 to Gene C. Jarmon, General Counsel
and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P. O. Box
149104, Austin, Texas 78714-9104. An additional copy of the comment must be
simultaneously submitted to Bill Bingham, Deputy Commissioner, Regulatory
Matters, Life, Health & Licensing Division, Mail Code 107-2A, Texas Department
of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. A request for a public
hearing should be submitted separately to the Office of the Chief Clerk.
The new sections are proposed under the Insurance Code, Chapter
845 and §36.001, the Government Code, Chapter 533 and the Health &
Safety Code, Chapter 62. Section 845.004 authorizes the commissioner to adopt
rules as necessary to implement the Statewide Rural Health Care System Act.
Section 36.001 of the Insurance Code provides that the Commissioner of Insurance
may adopt rules necessary and appropriate to implement the powers and duties
of the Texas Department of Insurance. Section 533.0025 of the Government Code
provides that the Medicaid managed care delivery system may be accomplished
through an exclusive provider organization. Section 62.051 of the Health &
Safety Code provides that the Commissioner of the Health and Human Services
Commission may delegate to the Department of Insurance the authority to adopt,
with the approval of the commission, any rules necessary to implement the
CHIP program.
The following articles are affected by this proposal: RuleStatute Insurance
Code, Chapter 845.004 Health & Safety Code, §62.051 Government Code, §533.0025
§3.9201.Application.
This subchapter applies to an exclusive provider benefit plan (EPP)
written by an issuer which has contracted with the Health and Human Services
Commission (HHSC) to provide services under the Texas Children's Health Insurance
Program (CHIP), Medicaid or with the Statewide Rural Health Care System (the
System). An issuer may only use an EPP in the System and/or by contract with
HHSC for CHIP or Medicaid. This subchapter applies to new or renewed contracts
on or after the effective date of this subchapter.
§3.9202.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)
Adverse determination--A determination by a utilization
review agent that the health care services furnished or proposed to be furnished
to a patient are not medically necessary or not appropriate.
(2)
Complaint--Any dissatisfaction, expressed by a complainant
orally or in writing to the issuer, with any aspect of the issuer's operation,
including plan administration; the denial, or termination of a service for
reasons not related to medical necessity; the way a service is provided; or
disenrollment decisions, expressed by a complainant. The term does not include
a misunderstanding or problem of misinformation that is resolved promptly
by clearing up the misunderstanding or supplying the appropriate information
to the satisfaction of the insured and does not include a provider's or insured's
oral or written dissatisfaction with an adverse determination.
(3)
Credentialing--The process of collecting, assessing, and
validating qualifications and other relevant information pertaining to a health
care provider to determine eligibility to deliver health care services.
(4)
Emergency care--Health care services provided in a hospital
emergency facility or comparable facility to evaluate and stabilize medical
conditions of a recent onset and severity, including but not limited to severe
pain, that would lead a prudent layperson possessing an average knowledge
of medicine and health to believe that his or her condition, sickness, or
injury is of such a nature that failure to get immediate medical care could
result in:
(A)
placing the patient's health in serious jeopardy;
(B)
serious impairment to bodily functions;
(C)
serious dysfunction of any bodily organ or part;
(D)
serious disfigurement; or
(E)
in the case of a pregnant woman, serious jeopardy to the
health of the fetus.
(5)
Exclusive provider--A health care provider or an organization
of health care providers who contract or subcontract to provide health care
services to covered persons.
(6)
Exclusive provider benefit plan (EPP)--A type of health
care plan offered by an issuer that arranges for or provides benefits to covered
persons through a network of exclusive providers, and that limits or excludes
benefits for services provided by other providers, except in cases of emergency
or approved referral.
(7)
Health care provider--Any person, corporation, facility,
or institution licensed by the State of Texas (including physicians, and practitioners
listed in Insurance Code Art. 21.52) to provide health care services.
(8)
Health care services--Any episodic or ongoing services
such as pharmaceutical, diagnostic, behavioral health, medical, dental care
or chiropractic in either an inpatient or outpatient setting rendered by a
health care provider for the purpose of treating, preventing, alleviating,
curing or healing illness, injury, or disease.
(9)
Hospital--A licensed public or private institution as defined
in Chapter 241, Health and Safety Code, or in Subtitle C, Title 7, Health
and Safety Code.
(10)
Independent review organization--An entity that is certified
by the commissioner to conduct independent review under the authority of Insurance
Code Article 21.58C.
(11)
Institutional provider--A hospital, nursing home, or any
other medical or health-related service facility caring for the sick or injured
or providing care for other coverage which may be provided in a health insurance
policy.
(12)
Insured--For purposes of this subchapter, a person covered
under an EPP.
(13)
Issuer--An insurance company authorized to do business
in Texas that contracts with the Health and Human Services Commission (HHSC)
to provide CHIP or Medicaid coverage or contracts with or is sponsored by
the System to issue an exclusive provider benefit plan.
(14)
Life-threatening--A disease or condition for which the
likelihood of death is probable unless the course of the disease or condition
is interrupted.
(15)
Limited provider network--A subnetwork within a network
in which contractual relationships exist between health care providers, physician
associations and/or physician groups which limit the insureds' access to only
those health care providers in the subnetwork.
(16)
Out-of-area benefits--Benefits that the EPP covers when
its insureds are outside the geographical limits of the EPP service area.
(17)
Physician--Anyone licensed to practice medicine in the
State of Texas.
(18)
Primary care physician or primary care provider--A health
care provider who has been selected by the insured to provide initial and
primary care, maintain the continuity of patient care, and who may initiate
referrals for care.
(19)
Quality improvement--A system to continuously examine,
monitor and revise processes and systems that support and improve administrative
and clinical functions.
(20)
Service area--A defined geographic area within which health
care services are available and accessible to EPP insureds who live, reside
or work within that geographic area.
(21)
Urgent care--Health care services provided in a situation
other than an emergency which are typically provided in settings such as a
health care provider's office or urgent care center, as a result of an acute
injury or illness that is severe or painful enough to lead a prudent layperson,
possessing an average knowledge of medicine and health, to believe that his
or her condition, illness, or injury is of such a nature that failure to obtain
treatment within a reasonable period of time would result in serious deterioration
of the current health condition.
(22)
Utilization review--A system for prospective or concurrent
review of the medical necessity and appropriateness of health care services
being provided or proposed to be provided to an individual within this state.
Utilization review shall not include elective requests for clarification of
coverage.
§3.9203.Policy and Premium Rates.
(a)
Disclosure of Complaint System. An EPP policy or certificate
must contain the Complaints and Appeals Process found in this subchapter.
This information must include a clear and understandable description of the
issuer's methods for resolving complaints. An issuer must provide any subsequent
changes to the complaint system to insureds, which it may include in a separate
document issued to the insured.
(b)
Medically Necessary Covered Services. If medically necessary
covered services are not available through exclusive providers, the issuer,
on the request of an exclusive provider, shall allow referral within a reasonable
period to a non-network health care provider and shall fully reimburse the
non-network health care provider at the usual and customary or an agreed rate.
The policy must provide for a review by a health care provider of the same
specialty or a similar specialty as the type of health care provider to whom
a referral is requested before the issuer may deny a referral.
(c)
Schedule of Premiums. An issuer must file the schedule
of premium rates and formula or method for calculating the schedule of premium
rates for covered health care services along with supporting documentation
with the commissioner before it is used in conjunction with any EPP. The issuer
must establish the formula or method in accordance with accepted actuarial
principles and must produce premium rates that are not excessive, inadequate,
or unfairly discriminatory, as well as premium rates that are reasonable with
respect to benefits. An issuer may not alter the premium rates resulting from
the application of the formula or method for an individual insured based on
the status of that insured's health.
(1)
An issuer must accompany each schedule of premium rates
and formula or method for calculating the schedule of premium rates with the
certification of a qualified actuary that, based on reasonable assumptions,
the formula is appropriate to produce premium rates that are not excessive,
inadequate, or unfairly discriminatory. An actuary is considered qualified
if he or she:
(A)
is a member of the American Academy of Actuaries; or
(B)
is a Fellow of the Society of Actuaries.
(2)
An issuer must accompany each formula or method for calculating
the schedule of premium rates with adequate detail including assumptions to
justify that the premium rates produced by the formula or method are not excessive,
inadequate, or unfairly discriminatory.
(3)
If the formula or method for calculating the schedule of
premium rates and the resulting rates are to be continued beyond a one-year
period, the issuer must file with the commissioner, no later that the anniversary
of the effective date of the original filing, an actuarial statement stating
that the issuer has applied the previously filed formula or method consistently,
and that the rates charged have proven and are expected to continue to be
adequate, not excessive, nor unfairly discriminatory. The issuer must include
with this filing a reconciliation of actual benefits to a schedule of premium
rates.
(4)
To the extent that an entity contracting with the insured
predetermines the schedule of premium rates, the issuer must submit the information
described in this subsection and demonstrate that the issuer is able to provide
the services for the contracted rates.
§3.9204.Contracting with Health Care Providers.
(a)
An issuer shall notify, by publication or in writing, all
health care providers in the service area of its intent to offer an EPP and
of the opportunity to participate. The issuer shall provide such notice prior
to issuance of the initial EPP and yearly thereafter.
(b)
An issuer shall on request make available and disclose
to any health care provider the issuer's written application procedures, qualifications
and information concerning requirements for participation as an exclusive
provider. An issuer shall provide written notice of the reasons it denied
the application to each health care provider who applies to contract and who
is denied.
(c)
An issuer may not, on the sole basis of category or specific
type of license or authorization, deny to any health care provider licensed
or otherwise authorized to practice in this state, participation to provide
health care services that are covered by the issuer, and within the scope
of licensure or authorization of that health care provider.
(d)
This subsection does not prohibit the issuer from rejecting
an application from a health care provider based on the determination that
the plan has sufficient qualified health care providers.
(e)
Each exclusive provider contract (or subcontract) must
provide that, before terminating a contract with an exclusive provider, the
contracting entity must provide a written explanation to the exclusive provider
of the reasons for termination. On request and before the effective date of
the termination, but within a period not to exceed 60 days, a provider will
be entitled to a review of the issuer's proposed termination by an advisory
review panel, except in a case in which there is imminent harm to patient
health or an action by a state medical or dental board, other medical or dental
licensing board, or other licensing board or other government entity, that
effectively impairs the health care provider's ability to practice medicine,
dentistry, or another profession, or in a case of fraud or malfeasance. The
advisory review panel shall be composed of exclusive providers, including
at least one representative in the health care provider's specialty or a similar
specialty, if available, appointed to serve on the standing quality assurance
committee or utilization review committee of the issuer. The issuer must consider
the decision of the advisory review panel, but it is not binding on the issuer.
The issuer will provide to the affected health care provider, on request,
a copy of the recommendation of the advisory review panel and the issuer's
determination.
(f)
Each exclusive provider contract (or subcontract) must
provide that an issuer or provider shall give reasonable advance notice to
an insured of the impending termination from the plan of an exclusive provider
who is currently treating the insured. Each contract must also provide that
the termination of the exclusive provider's contract, except for reason of
medical competence or professional behavior, does not release the issuer from
the obligation to reimburse the exclusive provider who is treating a patient
of special circumstance, such as a person who has a disability, acute condition,
or life-threatening illness or is past the twenty-fourth week of pregnancy,
at no less than the contract rate for that insured's care in exchange for
continuity of ongoing treatment of an insured then receiving medically necessary
treatment in accordance with the dictates of medical prudence. For purposes
of this subsection, "special circumstance" means a condition such that the
treating health care provider reasonably believes that discontinuing care
by the treating health care provider could cause harm to the patient. The
treating health care provider must identify the special circumstance and must
request that the insured be permitted to continue treatment under the health
care provider's care and agree not to seek payment from the patient of any
amounts for which the insured would not be responsible if the exclusive provider
were still in the EPP network. Each exclusive provider contract shall provide
procedures for resolving disputes regarding the necessity for continued treatment
by the exclusive provider. This section does not extend the obligation of
the issuer to reimburse the terminated health care provider for ongoing treatment
of an insured beyond the 90th day after the effective date of the termination,
or beyond nine months in the case of an insured who at the time of the termination
has been diagnosed with a terminal illness. However, the obligation of the
issuer to reimburse the terminated health care provider for services to an
insured who at the time of the termination is past the 24th week of pregnancy,
extends through delivery of the child, immediate postpartum care, and any
follow-up checkup within the first six weeks of delivery.
(g)
On request by the exclusive provider, an issuer must provide
an expedited review process to any exclusive provider who is terminated or
deselected. If the exclusive provider is deselected for reasons other than
at the provider's request, the issuer may not notify insureds of the exclusive
provider's deselection until the effective date of the termination or the
time a review panel makes a formal recommendation. If an exclusive provider
is deselected for reasons related to imminent harm, the issuer may notify
insureds immediately.
(h)
An exclusive provider contract (or subcontract) may not
contain any clause purporting to indemnify the issuer for any tort liability
resulting from acts or omissions of the issuer.
(i)
An exclusive provider contract (or subcontract) shall specify
that the exclusive provider will hold an insured harmless for payment of the
cost of covered health care services in the event the issuer fails to pay
the provider for health care services.
(j)
An issuer that conducts or uses economic profiling of exclusive
providers must make available upon request from a network provider the economic
profile of that provider, including the standards by which the provider is
measured. An economic profile must recognize the characteristics of an exclusive
provider's practice that may account for variations from expected costs.
(k)
An exclusive provider contract must require the health
care provider to post, in the office of the health care provider, a notice
to insureds of the process for resolving complaints with the issuer. The notice
must include the Texas Department of Insurance's toll-free telephone number
for filing non-Medicaid complaints.
(l)
An exclusive provider contract may not prohibit, attempt
to prohibit, or discourage an exclusive provider from discussing with or communicating
in good faith to a current, prospective, or former patient, or a party designated
by a patient, with respect to:
(1)
information or opinions regarding the patient's health
care, including the patient's medical condition or treatment options;
(2)
information or opinions regarding the provisions, terms,
requirements, or services of the EPP as they relate to the medical needs of
the patient; or
(3)
the fact that the exclusive provider's contract has terminated
or that the exclusive provider will otherwise no longer be providing health
care services under the EPP.
(m)
An issuer may not in any way penalize, terminate, or refuse
to compensate an exclusive provider for communicating with a current, prospective,
or former patient, or a party designated by a patient, in any manner protected
by this subchapter.
§3.9205.Compliance of Limited Provider Network.
An issuer that uses subcontractors to perform one or more function(s)
remains responsible for ensuring compliance with all applicable regulatory
compliance requirements. A limited provider network shall comply with all
statutory and regulatory requirements.
§3.9206.Quality Improvement and Utilization Management.
(a)
An issuer must establish and maintain procedures to assure
that the health care services provided to insureds are rendered under reasonable
standards of quality of care consistent with prevailing professionally-recognized
standards of medical practice. These procedures must include:
(1)
mechanisms to assure availability, accessibility, quality,
and continuity of care;
(2)
an ongoing internal quality improvement program to monitor
and evaluate its health care services, including primary and specialist physician
services, and ancillary and preventive health care services, in all institutional
and non-institutional contexts;
(3)
a record of formal proceedings of quality improvement program
activities and a means for maintaining documentation in a confidential manner.
Quality improvement program minutes shall be made available to the commissioner;
(4)
a physician review panel to assist in reviewing medical
guidelines or criteria and to assist in determining the prescription drugs
to be covered by the EPP, if the plan contains a prescription drug benefit;
(5)
an adequate patient record system that will facilitate
documentation and retrieval of clinical information for the purpose of the
issuer's evaluation of continuity and coordination of patient care and assessment
of the quality of health care services provided to insureds;
(6)
a mechanism for making available to the commissioner the
clinical records of insureds' for examination and review. Such records are
confidential and privileged, and are not subject to Government Code, Chapter
552, Public Information, or to subpoena, except to the extent necessary to
enable the commissioner to enforce this article; and
(7)
a mechanism for the periodic reporting of quality improvement
program activities to its governing body, providers, and appropriate organization
staff. An issuer is also subject to the same quality improvement requirements
as outlined in §11.1901 of this title (relating to Quality Improvement
Structure).
(b)
An issuer shall establish a mechanism for utilizing independent
review organizations as outlined in Insurance Code Article 21.58A.
§3.9207.Credentialing Requirements for Health Care Providers.
An issuer is subject to the same credentialing criteria as outlined
in §11.1902(4) of this title (relating to Quality Improvement Program).
§3.9208.Provider Network: Accessibility and Availability.
An issuer is subject to the same network accessibility and availability
requirements as outlined in §11.1607 of this title (relating to Accessibility
and Availability Requirements). Issuers must comply with this section; any
requirements under a Medicaid contract, subject to Government Code, Chapter
533; and any other applicable law.
§3.9209.Mandatory Disclosure Requirements.
(a)
An issuer must write all policies, health benefit plan
certificates, endorsements, amendments, applications, and riders in plain
language, in a readable and understandable format, and in compliance with
all applicable requirements relating to minimum readability requirements as
found in §3.602 of this title (relating to Plain Language Requirements).
(b)
The issuer shall provide to current or prospective insureds
on request an accurate written description of the terms and conditions of
the policy to allow current or prospective insureds to make comparisons and
informed decisions before selecting among health care plans. The written description
must be in a readable and understandable format as prescribed by the commissioner
and must include a current list of exclusive providers. The issuer's handbook
may satisfy this requirement if it is substantively similar to and achieves
the same level of disclosure as the written description prescribed by subsection
(e) of this section and it contains the current list of health care providers.
(c)
An issuer shall furnish a current list of exclusive providers
to all insureds no less frequently than annually.
(d)
No issuer, or agent or representative of an issuer, may
cause or permit the use or distribution to prospective insureds of information
which is untrue or misleading.
(e)
The written plan description must be in a readable and
understandable format that includes a clear, complete and accurate description
of paragraphs (1) - (11) of this subsection in the following order:
(1)
a statement that the plan providing the coverage is an
EPP;
(2)
a toll-free number, unless exempted by statute or rule,
and address for the prospective or current group contract holder or prospective
or current enrollee to obtain additional information, including provider information;
(3)
all covered services and benefits, including a description
of the options (if any) for prescription drug coverage, both generic and brand
name;
(4)
emergency care services and benefits, including coverage
for out-of-area emergency care services and information on access to after-hours
care;
(5)
out-of-area services and benefits (if any);
(6)
an explanation of enrollee financial responsibility for
payment of premiums, copayments, deductibles, and any other out-of-pocket
expenses for noncovered or out-of-plan services, and an explanation that exclusive
providers have agreed to look only to the issuer and not to its insureds for
payment of covered services, except as set forth in the description of the
plan;
(7)
any limitations or exclusions, including the existence
of any drug formulary limitations;
(8)
any description of prior authorization requirements, including
limitations or restrictions thereon, and a summary of procedures to obtain
approval for referrals to providers other than primary care physicians or
dentists, and other review requirements, including preauthorization review,
concurrent review, post service review, and post payment review, and the consequences
resulting from the failure to obtain any required authorizations;
(9)
provision for continuity of treatment in the event of the
termination of a primary care physician or dentist in those instances where
an insured has selected one;
(10)
a summary of the complaint and appeal procedures of the
EPP, a statement of the availability of the independent review process as
applicable, and a statement that the EPP is prohibited from retaliating against
insureds because the group contract holder or insured has filed a complaint
against the EPP or appealed a decision of the EPP, and is prohibited from
retaliating against a health care provider because the health care provider
has, on behalf of an insured, reasonably filed a complaint against the EPP
or appealed a decision of the EPP; and
(11)
a statement that female insureds shall have direct access
to an OB/GYN (who is an exclusive provider) for female services.
§3.9210.Complaints System.
(a)
Complaints System. Issuers must comply with this section;
any requirements under a Medicaid contract, subject to Government Code, Chapter
533; and any other applicable law. The complaint system must provide reasonable
procedures for the resolution of oral and written complaints initiated by
insureds or providers concerning health care services, including a process
for the notice and appeal of complaints.
(1)
If a complainant notifies the issuer orally or in writing
of a complaint, the issuer, not later than the fifth business day after the
date of the receipt of the complaint, shall send to the complainant a letter
acknowledging the date of receipt of the complaint that includes a description
of the organization's complaint procedures and time frames. If the complaint
is received orally, the issuer shall also enclose a one-page complaint form.
The one-page complaint form must prominently and clearly state that the complaint
form must be returned to the issuer for prompt resolution of the complaint.
(A)
The issuer shall investigate each oral and written complaint
received in accordance with its policies and in compliance with this subchapter.
(B)
Investigation and resolution of complaints concerning emergencies
or denials of continued stays for hospitalization shall be concluded in accordance
with the medical or dental immediacy of the case and may not exceed one business
day from receipt of the complaint.
(C)
For all other complaints, the total time for acknowledgment,
investigation, and resolution of the complaint by the issuer may not exceed
30 calendar days after the date the issuer receives the written complaint
or one-page complaint form from the complainant.
(D)
After the issuer has investigated a complaint, the issuer
shall send a response letter to the complainant explaining the issuer's resolution
of the complaint within the time frame as set forth in this section. The letter
must include a statement of the specific medical and contractual reasons for
the resolution and the specialization of any health care provider consulted.
The response letter must contain a full description of the process for appeal,
including the time frames for the appeal process and the time frames for the
final decision on the appeal.
(2)
If the complaint is not resolved to the satisfaction of
the complainant, the issuer shall provide an appeals process that includes
the right of the complainant either to appear in person before a complaint
appeal panel at a location where the insured normally receives health care
services, unless another site is agreed to by the complainant, or to address
a written appeal to the complaint appeal panel. The issuer shall complete
the appeals process under this section not later than the 30th calendar day
after the date of the receipt of the written request for appeal.
(A)
The issuer shall send an acknowledgment letter to the complainant
not later than the fifth business day after the date of receipt of the written
request for appeal.
(B)
The issuer shall appoint members to the complaint appeal
panel, which shall advise the issuer on the resolution of the dispute. The
complaint appeal panel shall be composed of equal numbers of issuer staff,
physicians or other providers, and insureds. Each member on the complaint
appeal panel must not have been previously involved in the disputed decision.
The health care providers must have experience in the area of care that is
in dispute and must be independent of any health care provider who made any
prior determination. If specialty care is in dispute, the appeal panel must
include a person who is a specialist in the field, or related field, of care
to which the appeal relates. Panel members that are insureds may not be employees
of the issuer.
(C)
Not later than the fifth business day before the scheduled
meeting of the panel, unless the complainant agrees otherwise, the issuer
shall provide to the complainant or the complainant's designated representative:
(i)
any documentation to be presented to the panel by the issuer
staff;
(ii)
the specialization of any health care providers consulted
during the investigation; and
(iii)
the name and affiliation of each issuer representative
on the panel.
(D)
The complainant, or designated representative if the insured
is a minor or disabled, is entitled to:
(i)
appear in person before the complaint appeal panel;
(ii)
present alternative expert testimony; and
(iii)
request the presence of and question any person responsible
for making the prior determination that resulted in the appeal.
(b)
Notice of the final decision of the issuer on the appeal
must include a statement of the specific contractual and clinical criteria
used to reach the final decision. The notice must also include the toll-free
telephone number and the address of the Texas Department of Insurance.
(c)
In compliance with Chapter 21, Subchapter Q of this Title
(relating to Complaint Records to be Maintained), the issuer shall maintain
a record of each complaint and any complaint proceeding and any actions taken
on a complaint for three years from the date of the receipt of the complaint.
The record must include complaints relating to limited provider networks.
A complainant is entitled to a copy of the record on the applicable complaint
and any complaint proceeding.
(1)
Each issuer shall maintain a complaint and appeal log regarding
each complaint.
(2)
Each issuer shall maintain documentation on each complaint
received and the action taken on each complaint until the third anniversary
of the date of receipt of the complaint. The Texas Department of Insurance
may review documentation maintained under this subsection, including original
documentation, during any investigation of the issuer.
(d)
The commissioner may examine the complaint system for compliance
with this subchapter and may require the issuer to make necessary corrections.
§3.9211.Filing of Complaints.
Any person, including a person who has attempted to resolve complaints
through an issuer complaint system process and who is dissatisfied with the
resolution, may report an alleged violation of this subchapter to the Texas
Department of Insurance at www.tdi.state.tx.us or 1-800-252-3439.
§3.9212.Appeal of Non-Medicaid Adverse Determinations.
An issuer shall perform utilization review in compliance with Insurance
Code Article 21.58A and must maintain procedures for notification, review,
and appeal of an adverse determination, as defined by this section. An issuer
shall implement and maintain an internal appeal system for non-Medicaid adverse
determinations that provides reasonable procedures for the resolution of an
oral or written appeal initiated by an insured, a person acting on behalf
of an insured, or an insured's provider of record concerning dissatisfaction
or disagreement with an adverse determination.
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.
Filed with the Office of
the Secretary of State on June 30, 2003.
TRD-200304006
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: August 10, 2003
For further information, please call: (512) 463-6327