28 TAC §21.2602, §21.2604
The Commissioner of Insurance adopts amendments to §21.2602
and §21.2604, concerning minimum standards for benefits provided to enrollees
with diabetes in health benefit plans and coverage under health benefit plans
for equipment and supplies and self-management training associated with the
treatment of diabetes. The amendments are adopted without changes to the proposed
text as published in the July 18, 2003, issue of the
Texas Register
(28 TexReg 5625), and will not be republished.
The amendments are intended to properly implement Insurance Code art. 21.53D,
consistent with legislative intent. The amendments to §21.2602 and §21.2604
are provided to clarify that all requirements of 28 TAC Chapter 21, Subchapter
R, (Diabetes) apply to health plans provided by risk pools created under Chapter
172, Local Government Code (risk pools). Subchapter R was adopted in 1999
pursuant to Insurance Code art. 21.53D, which directs the Commissioner of
Insurance, in consultation with the Texas Diabetes Council (TDC), to adopt
by rule minimum standards for benefits provided to enrollees with diabetes.
Subchapter R, as originally adopted, excluded risk pools from the requirement
that health plans that provide benefits for the treatment of diabetes and
associated conditions must provide coverage for diabetes equipment, supplies
and self-management training programs. Excluding risk pools from providing
these coverages does not conform to the applicable statutory mandate and is
inconsistent with legislative intent. Adoption of the amendments resolves
that inconsistency.
The amendments include language changes that make clear that risk pools
are subject to the requirements of §§21.2603, 21.2605, and 21.2606,
so that risk pools must meet the same requirements as all other health plans
to which Subchapter R applies.
The adoption also includes an amendment to §21.2602 to delete unnecessary
language and an amendment to §21.2604 to correct a citation.
Section 21.2602 and §21.2604: One comment was received on the proposal.
The same commenter submitted comments to an earlier proposal of the same nature,
that was published in the January 10, 2003, issue of the
Texas Register
(28 TexReg 430). The comment to the current proposal
was submitted as a "supplement" to the comment on the proposal published on
January 10, 2003.
The commenter believes that requiring a risk pool created pursuant to Local
Government Code Chapter 172 to provide coverage for diabetes equipment and
supplies and for diabetes self-management training is beyond the department's
authority. The commenter notes that Chapter 172 risk pools are generally exempt
from Texas Insurance Code provisions pursuant to the language found at Local
Government Code §172.014, but acknowledges that art. 21.53D contains
language that essentially nullifies the Chapter 172 exemption. The commenter
contends that this nullification of the Chapter 172 exemption applies to mandated
benefits under art. 21.53D, but not to coverage for supplies and services
associated with diabetes under art. 21.53G. The standards set forth by the
commissioner pursuant to art. 21.53D, the commenter argues, may not include
requirements regarding coverage for supplies and services associated with
the treatment of diabetes because the legislature enacted a separate statute,
art. 21.53G, that applies to those supplies and services, and art. 21.53G
does not include a nullification of the Chapter 172 exemption.
The commenter believes that the department unnecessarily attempts to construe
an unambiguous statute. This comment is part of an analysis by the commenter
that focuses entirely on art. 21.53G, and argues that the rule of statutory
construction historically known as expressio unius est exclusio alterius (the
express mention of one thing, consequence or class in a statute is tantamount
to the exclusion of all others) prohibits the department from requiring risk
pools to provide coverage for supplies and services associated with diabetes
that are addressed under art. 21.53G.
The commenter reflects a clear understanding of the department's stated
position that in order to effect the will of the legislature, the minimum
standards for the treatment of diabetes adopted pursuant to art. 21.53D must
include a requirement that health plans provide coverage for diabetes supplies,
equipment and training. But the commenter also argues that if this were the
case, there would have been no need for the legislature to enact art. 21.53G,
and it cannot be presumed that the legislature engaged in a useless or meaningless
act.
The commenter also disagrees with the department's position, stated in
the July 18 proposal, that art. 21.53D is the controlling authority and determines
the outcome because the legislature took final action on art. 21.53D after
it took final action on art. 21.53G. The commenter's position is that both
articles were adopted in the same legislative session, with the same effective
date, and there is no conflict between the two articles.
The commenter requests that the rule be revised to clarify that Chapter
172 risk pools are subject only to the requirements of art. 21.53D and not
to art. 21.53G.
Agency Response: The department respectfully disagrees, and declines to
make the requested changes to the proposed rule.
Art. 21.53D does not incorporate art. 2153G by reference. Each article
is independent with regard to the health plans to which it applies and with
regard to the mandates it imposes for coverage of diabetes care. Art. 21.53G
is cited along with art. 21.53D as authority for these amendments because
art. 21.53G provides more specific guidance about minimum requirements for
coverage for diabetes supplies, equipment and self-management training. The
commenter seems to acknowledge that the mandates in art. 21.53D are broader
in scope than those in art. 21.53G, and only seeks to have risk pools excluded
from the parts of the art. 21.53D mandates that require coverage for diabetes
supplies, equipment and self-management training. However, nothing in art.
21.53G affects in any way the applicability of all standards established pursuant
to art. 21.53D to all of the health plans identified in art. 21.53D, §2.
The commenter's reliance upon the cited rule of statutory construction would
only be helpful if the applicability of art. 21.53G alone was being considered.
But the real issue identified by the commenter is the need to correctly reconcile
two statutes that are in conflict with regard to the applicability to risk
pools of certain minimum standards for diabetes care coverage. Whereas art.
21.53G does not expressly include risk pools in its scope, art. 21.53D does.
Thus, expressio unius est exclusio alterius does not control the question
of the applicability of art. 21.53D to risk pools.
The department also disagrees with the commenter's argument that if minimum
standards established pursuant to art. 21.53D could require risk pools to
provide coverage for diabetes equipment, supplies and self-management training,
there would have been no need for the legislature to enact art. 21.53G. Art.
21.53G addresses standards for coverage for diabetes equipment, supplies and
self-management training by many different kinds of health plans other than
risk pools, including reciprocal exchanges operating pursuant to Chapter 942
of the Insurance Code. Art. 21.53D does not include reciprocal exchanges in
its scope. Art. 21.53G is the only statute that mandates coverage for diabetes
supplies, equipment and self-management training by reciprocal exchanges and
it is therefore not rendered meaningless or useless by the department's interpretation
of art. 21.53D.
The department considers the fact that the legislature took final action
on art. 21.53D after it took final action on art. 21.53G to be a very salient
point. Government Code §311.025(a) stipulates that if statutes enacted
in the same legislative session are irreconcilable, the statute latest in
date of enactment prevails. As noted in the proposal, art. 21.53D was enacted
after art. 21.53G.
The legislature also made a specific statement about the applicability
of art. 21.53D to risk pools, while it made no specific statement on the inclusion
of risk pools in the scope of art. 21.53G. Art. 21.53G did not address the
issue of its applicability to risk pools at all. Art. 21.53G and its legislative
history are actually silent on the question of the applicability of art. 21.53G
to risk pools. It is only because of the language in Local Government Code §172.014
that the necessary interpretation of this silence is that art. 21.53G presumptively,
when read in isolation, does not apply to risk pools.
Perhaps most important to note is that the legislature made its intent
clear by including in its record an express statement regarding the applicability
of art. 21.53D to risk pools. During the House floor debate on second reading
of SB 162 (the bill enacting art. 21.53D) on May 23, 1997, Representative
Madden offered Floor Amendment #2, which read as follows:
Amend SB 162 as follows:
On page 3, following line 25, add a new subsection "
(3)
" that incorporates this language, "
Notwithstanding
Section 172.014, Local Government Code, or any other law, this article applies
to health and accident coverage provided by a risk pool created under Chapter
172, Local Government Code.
", and renumber the lines of the subsequent
text accordingly.
Representative Madden stated the amendment was the same one "offered last
night" to allow coverage under the Local Government Code, Chapter 172. The
House Journal for May 22, 1997 shows that CSSB 54 was debated by the House
on that date. On p. 3329 of the 1997 House Journal is a Floor Amendment for
CSSB 54 that is identical in wording to Floor Amendment #2 for SB 162. No
other bill was discussed in the House on May 22, 1997 that had the same or
similar wording. When Representative Gray laid out CSSB 54, she indicated
that there was one amendment, to be offered by Representative Madden, that
would make sure women working for cities and counties would also receive the
benefits of CSSB 54. (CSSB 54 allowed women to go directly to their OB/GYN
without first seeing their primary care physician.)
Thus, the legislature did see fit to enact legislation that is intended
to require risk pools to provide coverage for diabetes supplies, equipment
and self-management training. Rather than suggesting an intent to include
risk pools in the scope of art. 21.53D for only limited purposes, the history
gives the clear message that persons covered by risk pools (persons working
for cities and counties) are to receive the same benefits as everyone else
covered by art. 21.53D.
Art. 21.53D was enacted more recently than art. 21.53G, and addressed its
applicability to risk pools more specifically than did art. 21.53G. These
facts, combined with the legislative history cited above, compel the department
to conclude that risk pools should be treated the same as all other benefit
plans that are subject to these rules. This includes the requirement that
the benefit plans provide coverage for diabetes equipment, supplies and self-management
training in accordance with the standards in these rules.
Against: Texas Municipal League Intergovernmental Employee Benefits Pool
(TMLIEBP).
The amendments are adopted under the Insurance Code Arts. 21.53G,
21.53D and §36.001. Art. 21.53G provides guidance about coverages required
for diabetes supplies, equipment and self-management training. Art. 21.53D, §3
provides that the commissioner shall by rule adopt minimum standards for benefits
to enrollees with diabetes and that each health care benefit plan shall provide
benefits for the care required by the minimum standards. Section 36.001 provides
that the Commissioner of Insurance may adopt any rules necessary and appropriate
to implement the powers and duties of the Texas Department of Insurance under
the Insurance Code and other laws of this state.
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 20, 2004.
TRD-200400399
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Effective date: February 9, 2004
Proposal publication date: July 18, 2003
For further information, please call: (512) 463-6327