Part 1.
TEXAS DEPARTMENT OF INSURANCE
Chapter 11.
HEALTH MAINTENANCE ORGANIZATIONS
The Commissioner of Insurance adopts amendments to §§11.2,
11.508 and 11.509 concerning basic health care services and state-mandated
benefits for health maintenance organizations (HMOs). The amendments to §11.2
and §11.508 are adopted with changes to the proposed text as published
in the January 9, 2004, issue of the
Texas Register
(29 TexReg 293). The amendments to §11.509 are adopted without
changes and will not be republished.
These amendments are the result of the enactment of Senate Bill (SB) 541
during the 78th Regular Legislative Session. That legislation, among other
things, provides more flexibility in the health insurance market by authorizing
insurers and HMOs to issue health plans that, in whole or in part, do not
include state-mandated benefits. These consumer choice plans are the subject
of adopted rules published elsewhere in this issue of the
Texas Register
. In addition, SB 541 amended the definition of "basic
health care services" in the HMO Act, Texas Insurance Code Chapter 843, to
allow the commissioner to determine those services that an enrolled population
might reasonably need to maintain good health, and to delete the requirement
that such services include, at a minimum, services designated as basic health
care services for federally qualified HMOs under Section 1302, Title XIII,
Public Health Service Act (42 U.S.C. Section 300e-1(1)).
The amendments are necessary to comply with SB 541 by identifying basic
health care services that are not tied to the specific requirements of federal
law. The amendments are also necessary to amend and add definitions consistent
with these changes and with the development and issuance of consumer choice
plans in the HMO market. In developing a list of basic health care services,
the department considered and evaluated the requirements of federal law contained
in the existing rule; many of these requirements were retained, although the
adopted rule, unlike the existing rule, is comprised primarily of basic services
that apply to all persons and removes certain services that are condition-specific.
In developing the list, the department also considered the statutes and rules
of neighboring states and some of the larger states with populations similar
to that of Texas. The department also considered and evaluated those services
that were included in evidences of coverage in use in Texas prior to the statutory
directive that the federal requirements be considered the minimum standard.
Based on the department's analysis of these sources, the department believes
the services that are included in the adopted description of basic health
care services are those that an enrolled population might reasonably need
to maintain good health.
Consistent with SB 541, the amendments also limit the application of some
currently required additional mandatory benefit standards for certain group
agreements and add coverage requirements for certain services as set forth
in §11.508(a)(1)(H)(iv) (cancer screenings as required in Insurance Code
Article 3.70-2(H) relating to mammography) and (vi) (cancer screenings as
required in Insurance Code Article 21.53S relating to screening for colorectal
cancer).
The department received numerous comments relating to the proposed rule.
The greatest number of comments concerned the services the department included,
and did not include, in the definition of "basic health care services." On
the one hand, physician and provider groups, consumer advocates and representatives
of various other organizations asserted that the list of basic health care
services should include some specific condition- or gender- related services,
including diabetes, HIV/AIDS and family planning services for women. Carriers,
on the other hand, contended that the list of basic health care services was
too broad and was contrary to the legislative intent of providing more choice
and flexibility in the market.
After considering all comments, the department adopted some changes to
the proposed sections as published, as follows: (1) The department changed §11.508(a)(1)(E)
to clarify that coverage for prenatal services is required only if maternity
benefits are provided. (2) The department changed §11.508(a)(1)(G) to
clarify that home health services are covered as "prescribed or directed by
the responsible physician or other authority designated by the HMO." (3) The
department changed §11.508(a)(1)(H)(vii) to remove the requirement that
eye and ear examinations for children be provided annually and instead to
require that such examinations be provided "in accordance with established
medical guidelines." (4) The department added §11.508(a)(1)(H)(viii)
to require immunizations for adults as recommended by the United States Department
of Health and Human Services Centers for Disease Control. The department believes
the strong public health benefit of immunizations makes them, on a select
basis for adults, a service necessary to keep an enrolled population in good
health. (5) The department changed §11.508(a)(1)(I) to place a 20-outpatient
visit minimum requirement upon the provision of short-term mental health services.
(6) The department changed §11.508(b)(2) to clarify that maternity benefits
includes prenatal, delivery and postdelivery care. (7) The department changed §11.508(d)
to clarify that a state-mandated plan must provide coverage for basic health
care services without limitation as to time and cost, except for those limitations
specifically identified in the rule. This change was necessary to allow for
the limitation of required short-term mental health services to 20 outpatient
visits. In addition to the foregoing changes, the department also made other
changes for purposes of consistency and clarity, including changes necessary
to ensure the definitions in §11.2 are in alphabetical order and to correct
references to certain statutory provisions that have been revised, as well
as to correct clerical and typographical errors.
The amendments to §11.2(b) amend the definition of basic health care
service and add definitions for consumer choice plans and state-mandated plans.
The amendments in that section also reorganize all of the definitions into
alphabetical order and change some of the references to certain provisions
of the Insurance Code and other statutory references to reflect recodification
and other statutory amendments. The amendments to §11.508 describe basic
health care services for group, individual and conversion agreements, including
state-mandated plans. The amendments to §11.509 clarify that certain
additional mandatory benefit standards must be included in certain group agreements.
General
Comment A commenter testified in favor of the rules and noted that the
rules were generally well researched and well thought out.
Agency Response: The department appreciates the comment.
Comment: Commenters state that the rules do not address some other provisions
contained in the previous rule that are no longer mandated because of the
deletion of the federal requirements. One commenter is concerned that restrictions
on copayments for HMOs are much more restrictive than are required for other
products. These commenters recommend revisions to §11.506(2)(A) to allow
both deductible and copayment options and to remove restrictions on copayment
and deductible amounts. These changes, the commenters argue, will enable HMOs
to be competitive with non-HMO products already available in the market.
Agency Response: SB 541 changed the definition of "basic health care services,"
to allow the commissioner to determine those services that an enrolled population
might reasonably need to maintain good health and to delete the requirement
that such services include, at a minimum, services designated as basic health
care services for federally qualified HMOs under Section 1302, Title XII,
Public Health Service Act (42 USC Section 300e-1(1)). This was the only statutory
change applicable to all HMO plans and this rule implements that statutory
requirement. SB 541 also defined "state-mandated health benefits," which may
be excluded from a consumer choice plan, to include cost-sharing limitations
or restrictions. Therefore, while SB 541 removed restrictions on copayment
and deductible amounts for HMO consumer choice plans, it did not remove such
restrictions for all HMO plans. The rule implementing SB 541 on consumer choice
plans in Chapter 21 clarifies those cost-sharing provisions which may be excluded
from an HMO consumer choice plan and the department refers the commenter to
that adoption order for greater detail. All HMO plans, including HMO consumer
choice plans, must comply with other requirements of the Insurance Code relating
to the reasonableness of the cost of coverage, including article 20A.09(k)
or 20A.09(b), and §843.082(3).
Comment: A commenter requests that consideration be given to comments received
from medical specialty societies, as they will be highly affected by these
rules.
Agency Response: The department carefully considers comments from all parties,
and recognizes the informed perspective medical specialty societies provide
to a rule of this nature, as well as the impact the rule will have on their
members.
§§11.2(b)(7) & 11.508(a): A commenter suggests that the list
of basic health care services be reviewed periodically. Other commenters suggest
that the department revisit the definition and list of basic health care services
every two years.
Agency Response: While the department declines to specify a review period,
it continuously monitors adopted rules and will propose changes as necessary.
§§11.2, 11.508, 11.509: A commenter believes that the rule still
includes federal minimum basic health care services that will not allow health
plans to continue to be competitive or allow for flexibility and availability
of health coverage intended by the legislature. The commenter requests that
the proposed rules be changed to more accurately reflect this legislative
intent. The commenter believes that TDI should allow market forces to work
and enable small employers and individuals to get some level of coverage rather
than mandate an amount of coverage that isn’t affordable. Some commenters
recommend deleting the provisions that mandate coverage of: annual eye and
ear examinations for children; home health services; mental health services
for short-term evaluative or crisis stabilization services; and outpatient
services by other providers. The commenters believe that the requirement of
coverage for outpatient services is overly broad and may force unnecessary
contracts and result in premium increases. Other commenters believe that the
list of basic health care services is too limited and does not adequately
represent the services that an enrolled population may reasonably need to
be maintained in good health.
Agency Response: SB 541 changed the definition of "basic health care services"
to allow the commissioner to determine those services that an enrolled population
might reasonably need to be maintained in good health and to delete the requirement
that such services include, at a minimum, services designated as basic health
care services for federally qualified HMOs under Section 1302, Title XII,
Public Health Service Act (42 USC Section 300e-1(1)). In developing the list
of basic health care services, the department considered many factors, including
federally-mandated benefits, laws of states with populations similar to that
of Texas, laws of neighboring states, services included in evidences of coverage
in Texas prior to adoption of federal requirements as the minimum standard,
and comments received during the informal comment period. The rule no longer
contains references to certain services that are condition-specific and instead
includes those basic services that generally apply to all persons. In developing
the list of basic health care services, the department attempted to balance
the need for flexible coverage alternatives in the marketplace with the statutory
directive to include those services that an enrolled population might reasonably
need to maintain good health. While the department declines to remove any
additional services from the list of basic health care services, the department
notes that it set some guidelines with regard to the provision of certain
basic health care services (e.g., prenatal services are required only if maternity
benefits are covered, home health services are required but only if prescribed
or directed by the responsible physician, eye and ear examinations for children
are required in accordance with established medical guidelines rather than
annually, and, consistent with the prior rule’s requirement, coverage
is required for 20 outpatient mental health visits per member per year). In
addition, HMOs have the flexibility to apply limitations as to time and cost
for HMO consumer choice plans. With regard to the provision requiring coverage
for outpatient services by other providers, the department notes that the
introductory language in §11.508(a) clarifies that these services are
only required when they are provided by "network physicians or providers,
or by non-network physicians and providers as set forth in §11.506(10)
or (15)." In addition, the use of the word "providers" refers to individual
or institutional non-physician health care providers as defined in §11.2.
Because these terms and their application are limited, the department does
not believe the provision is overly broad or that it will require any unnecessary
contracts.
§11.2(b)(59): A commenter finds referencing the lists in adopted §§21.3515-21.3518
in the definition of "state-mandated plan" to be confusing, and questions
whether the benefits listed in these sections are required in the state-mandated
plan.
Agency Response: A "state-mandated plan" must include all benefits required
by law, including those benefits which a health carrier may exclude from a
consumer choice health benefit plan. Accordingly, a state-mandated plan must
include the benefits listed in §§21.3515-21.3518, as appropriate
for the type of plan issued.
§11.508
Comment: A commenter asks if an analysis has been done of what the inclusion
of certain basic health care services will do to the cost of the premium and
encourages the department to consider the increased costs of benefit and administrative
requirements in this analysis.
Agency Response: The department’s obligations under SB 541 are to
identify, and require coverage for, those services that an enrolled population
might reasonably need to maintain good health. In performing this task, the
department was mindful of the goals of the legislation, and accordingly, has
not added any additional basic health care services that are not necessary
to achieve this purpose. The department has, in fact, removed some of those
services, especially some that were condition-specific. Because the department
has limited or deleted some of the previous basic health care services, and
because HMOs have the flexibility to apply limitations as to time and cost
for HMO consumer choice plans, the department anticipates that the adopted
rule should not result in any increased costs.
Comment: A commenter is concerned that the definition of "basic health
care services" for HMOs is not limited as to time and cost, and recommends
that these limitations be included.
Agency Response: The department disagrees that general limitations as to
time and cost should be allowed for all basic health care services, since
Insurance Code Article 20A.09(l) (regarding the provision of basic health
care services without limitation as to time and cost) still applies to HMO
plans, other than HMO consumer choice plans. However, the rule identifies
certain limitations that may apply with respect to coverage for a particular
service within the definition of "basic health care services." Specifically,
the rule limits the required coverage of short-term mental health services
to 20 outpatient visits. Otherwise, the rule requires coverage of basic health
care services without limitation as to time and cost for all HMO plans, except
HMO consumer choice plans. In addition, the adopted rule on consumer choice
plans in Chapter 21 allows the provision of basic health care services in
HMO consumer choice plans to be limited by time and cost through deductibles,
benefit maximums, and copayments. However, all HMO plans, including HMO consumer
choice plans, must comply with other requirements of the Insurance Code relating
to the reasonableness of the cost of coverage, including Article 20A.09(k)
or 20A.09(b), and §843.082(3).
§11.508(a)
Comment: Commenters suggest that the following types of services are "basic"
and should be included in the list of basic health care services: treatment
of diabetes; treatment of HIV/AIDS; the full range of voluntary family planning
services for women; screening for cervical cancer for women; and basic infertility
diagnosis and limited treatment for infertility for women. One commenter requests
that if coverage is required for specific conditions, TDI make this clear
in the final rule.
Agency Response: The department declines to make the requested changes.
The legislature in SB 541 recognized the need for individuals and employers
to have the opportunity to choose health maintenance organization plans that
are more affordable and flexible than existing market health care plans. Accordingly,
in developing the new list of basic health care services, the department sought
to focus more specifically on the "services" an HMO would have to provide,
as opposed to the conditions it would have to cover. The department has thus
removed some references to coverages that are condition-specific. A basic
service HMO is still required to provide these coverages as required by state
or federal law. The difference is that the authority stems from specific statutory
or regulatory requirements, instead of from the list of basic services. For
example, the previous list of basic health care services required that "a
provision of maternity benefits must provide care for an enrollee and her
newborn child as described in the Insurance Code Article 21.53F." While the
new list of basic health care services no longer includes this specific requirement,
a basic service HMO must still provide it in accordance with the statute.
The new list is intended to outline the structure and type of required services
that apply to all persons covered by an HMO, and allow market forces and other
specific legal requirements determine which conditions are covered. As the
department has eliminated specific references to coverages from the previous
list of basic health care services, it would not be appropriate to add to
the list any new specific coverages, such as treatment for AIDS/HIV. The department
notes, however, that Article 3.51-6, §3C forbids a group HMO health plan,
other than a consumer choice plan, to exclude or deny coverage for AIDS/HIV.
While the list of basic health care services does not specifically include
diabetes care, the rule does require an evidence of coverage to include coverage
for diabetes care as required by Insurance Code Article 21.53G. Certain HMO
plans would also have to comply with Article 21.53D.
While the Texas Insurance and Administrative Codes are the primary sources
for other laws requiring an HMO to cover specific conditions and treatments,
the TDI website also contains a mandated benefit chart to provide guidance
in this area. Where there is no specific legal direction, the group or individual
purchaser and the HMO can decide whether a particular condition-specific service/treatment
will be limited or available. For example, while specialty physician services
and hospital services are basic health care services, they may not be covered
benefits for cosmetic procedures if such procedures are excluded under the
plan.
With regard to cervical cancer screenings for women, the department included
in the list of basic services only those cancer screenings required by statute,
and no statute requires cervical cancer screening for women. The department
notes, however, that coverage of this screening is universal among HMOs, as
are many other condition-specific coverages not required by law. The statute
empowers the commissioner to define basic health care services, and the department
will continue to monitor the conditions basic service HMOs cover and consider
amending the list as necessary to require coverage of specific conditions
as necessary to keep an enrolled population in good health.
The final requested coverages, family planning services for women and infertility
treatment and diagnosis, are utilized by a broad segment of the population
to varying degrees. As set forth in response to a previous comment, the department
considered various factors in developing the list of basic health care services,
including federally-mandated benefits, laws of states with populations similar
to that of Texas, laws of neighboring states, services included in evidences
of coverage in Texas prior to adoption of federal requirements as the minimum
standard, and comments received during the informal comment period. The department
determined through its review and analysis of these sources, however, that
the level and scope of required coverage of the requested services varied
greatly among the states, with a significant number requiring neither family
planning nor infertility coverage. Moreover, as mentioned above, SB 541 aims
to provide more affordable and flexible health care plans. Consistent with
the aims of SB 541, allowing the parties to the coverage contract to determine
the level of coverage for family planning/infertility services provides a
broader spectrum of plan design and cost-sharing options than is currently
available under the federal mandate to cover a broad range of voluntary family
planning services. Plans, of course, may continue to offer coverage for services
that the rule does not include as basic health care services.
Comment: A commenter suggests that immunizations, in accordance with the
U.S. Centers for Disease Control recommended schedule for adults with medical
conditions, should be a basic health care service and should be included in
the list of basic health care services. Other commenters recommend deletion
of the provision that mandates preventive health services including adult
immunizations in accord with accepted medical practices. Another commenter
requests that if coverage is required for immunizations, TDI make this clear
in the final rule.
Agency Response: The previous rule included, as a basic health care service,
a broad requirement of immunizations for adults "in accordance with medical
practices." The proposed rule deleted this requirement, but, based on comments
received, the department has reinstated adult immunizations as a basic health
care service. The amended requirement is, however, narrowly drawn to include
only immunizations recognized by the United States Department of Health and
Human Services Centers for Disease Control Recommended Adult Immunization
Schedule by Age Group and Medical Conditions. Immunizations prevent development
of communicable diseases in, and transmission of such diseases to, otherwise
healthy individuals. Consequently, the department believes the strong public
health benefit of immunizations makes them, on a select basis for adults,
a necessary and cost-effective service to keep an enrolled population in good
health.
Comment: A commenter recommends the list of basic health care services
continue to include the language "Diabetes, A provision for the treatment
of diabetes, and conditions associated with diabetes pursuant to the Insurance
Code Article 21.53G." Another commenter requests that enrollees in plans subject
to these rules be assured of services for the prevention and appropriate treatment
of diabetes and related conditions.
Agency Response: As set forth in response to previous comments, the department
removed condition-related services from the list of basic health care services
and whether coverage is available or limited for certain conditions will depend
upon various factors, including applicable statutory and regulatory provisions.
Because Insurance Code Article 21.53G requires coverage for supplies and services
associated with the treatment of diabetes, such coverage does not need to
be included as a basic health care service. The department notes, however,
that the rule at §11.508(b)(3) requires coverage for "diabetes self-management
training, equipment and supplies as required in Insurance Code Article 21.53G."
Thus, this coverage is required for all HMO plans, including HMO consumer
choice plans. In addition, Insurance Code Article 21.53D requires coverage
for diabetes care under certain HMO plans, other than HMO consumer choice
plans.
§11.508(a)(1)(F): Commenters request that physical therapy be included
as a basic health care service. Other commenters recommend deleting the outpatient
rehabilitation therapies mandate, and note that the federal requirements limit
this to short-term rehabilitation therapy. Another commenter suggests that
distinguishing between outpatient and inpatient services is not an appropriate
distinction for physical therapy. Another commenter is concerned that deleting
the previous rule’s clarifying language that treatment goals may include
maintenance of function or slowing of further deterioration from the reference
to rehabilitative services may result in the exclusion of that kind of rehabilitative
therapy from basic health care services. The commenter asks that the rule
make clear that such therapies are basic health care services, and offers
proposed language.
Agency Response: As set forth in response to previous comments, the department
considered numerous sources in determining what constitutes a basic health
care service. Based upon the department’s review of these sources, the
department concluded that outpatient rehabilitation therapies and inpatient
short-term rehabilitation therapy services in an acute hospital setting are
necessary to maintain an enrolled population in good health. The department
determined that such therapies may be necessary to achieve, for example, successful
and cost-effective surgical outcomes, to avoid costly procedures, and to return
ill or injured patients to a functional and productive state. Consequently,
the department declines to remove these rehabilitation therapies from the
list of basic health care services. However, in consumer choice plans an HMO
may limit these therapies by time and cost through deductibles, benefit maximums,
and copayments. The department recognizes that physical therapy services provided
in the outpatient and inpatient settings may be very similar or the same;
however the therapies are listed in both locations to clarify that therapy
provided in both settings must be covered. While language regarding treatment
goals was removed from the rule, the language remains in Texas Insurance Code
Article 20A.09(a)(4). Thus, HMO plans, except HMO consumer choice plans, must
still provide coverage for such therapies.
§11.508(a)(1)(H)(iv)- (vi): A commenter suggests that the department
broaden these references to cancer screenings to allow for advances in medical
technology allowing improved and less expensive screening.
Agency Response: The rule’s references to cancer screenings are tied
to specific statutory requirements. HMOs are free to include in their plans
additional types or methods of screening, and as medical science advances,
the department expects that plans will include improved and less expensive
screening methods. In addition, the department will periodically continue
to review the list of basic health care services and update as necessary.
§11.508(b)(2): Commenters recommend that the rule mandate prenatal
services only if the policy covers pregnancy.
Agency Response: The department agrees with this comment and has revised
the rule accordingly.
NAMES OF THOSE COMMENTING FOR AND AGAINST THE SECTIONS.
For With Changes: Advocacy, Incorporated; American Diabetes Association;
Blue Cross Blue Shield of Texas; Coalition for Texans with Disabilities; Consumers
Union; National Multiple Sclerosis Society of Texas; NEXT; Office of Public
Insurance Counsel; TFE Company; Texas Association of Businesses; Texas Association
of Health Plans; Texas Association of Life and Health Insurers; Texas Medical
Association; Texas Physical Therapy Association; and Women’s Health
and Family Planning Association of Texas.
Subchapter A. GENERAL PROVISIONS
28 TAC §11.2
The amendments are adopted under the Insurance Code Article
20A.09N(j) and §§843.002(2), 843.151 and 36.001. Insurance Code
Article 20A.09N(j) requires the commissioner to adopt rules as necessary to
implement the statutes creating consumer choice plans. Section 843.002(2)
provides that basic health care services are those the commissioner determines
an enrolled population might reasonably require in order to be maintained
in good health. Section 843.151 provides that the commissioner may adopt reasonable
rules as necessary and proper to carry out the provisions of Chapters 843
and 20A. Section 36.001 provides that the commissioner 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.
§11.2.Definitions.
(a)
The definitions found in the Texas Health Maintenance Organization
Act, Texas Insurance Code §843.002, are hereby incorporated into this
chapter.
(b)
The following words and terms, when used in this chapter,
shall have the following meanings unless the context clearly indicates otherwise.
(1)
Act--The Texas Health Maintenance Organization Act, codified
as the Texas Insurance Code Chapters 20A and 843.
(2)
Admitted assets--All assets as defined by statutory accounting
principles, as permitted and valued in accordance with §11.803 of this
title (relating to Investments, Loans, and Other Assets).
(3)
Adverse determination--A determination upon utilization
review that the health care services furnished or adopted to be furnished
to a patient are not medically necessary or not appropriate.
(4)
Affiliate--A person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the person specified.
(5)
Agent--As defined in the Insurance Code Article 21.07-1, §1(b),
unless the context of the rule clearly indicates applicability to any agents
licensed under one specific article.
(6)
ANHC or approved nonprofit health corporation--A nonprofit
health corporation certified under §162.001 of the Occupations Code.
(7)
Annual financial statement--The annual statement to be
used by HMOs, as promulgated by the NAIC and as adopted by the commissioner
under Insurance Code Article 1.11 and §§802.001, 802.003 and 843.155.
(8)
Authorized control level--The number determined under the
RBC formula in accordance with the RBC instructions.
(9)
Basic health care service--Health care services which an
enrolled population might reasonably require to maintain good health, as prescribed
in §§11.508 and 11.509 of this title (relating to Mandatory Benefit
Standards: Group, Individual and Conversion Agreements, and Additional Mandatory
Benefit Standards: Group Agreement Only).
(10)
Code--The Texas Insurance Code.
(11)
Consumer choice plan--A health plan offered by an HMO,
as described in Subchapter AA of Chapter 21 of this title (relating to Consumer
Choice Health Benefit Plans);
(12)
Contract holder--An individual, association, employer,
trust or organization to which an individual or group contract for health
care services has been issued.
(13)
Control--As defined in the Insurance Code §§823.005
and 823.151.
(14)
Controlled HMO--An HMO controlled directly or indirectly
by a holding company.
(15)
Controlled person--Any person, other than an HMO, who
is controlled directly or indirectly by a holding company.
(16)
Copayment--A charge in addition to premium to an enrollee
for a service which is not fully prepaid.
(17)
Credentialing--The process of collecting, assessing, and
validating qualifications and other relevant information pertaining to a physician
or provider to determine eligibility to deliver health care services.
(18)
Dentist--An individual provider licensed to practice dentistry
by the Texas State Board of Dental Examiners.
(19)
General hospital--A licensed establishment that:
(A)
offers services, facilities, and beds for use for more
than 24 hours for two or more unrelated individuals requiring diagnosis, treatment,
or care for illness, injury, deformity, abnormality, or pregnancy; and
(B)
regularly maintains, at a minimum, clinical laboratory
services, diagnostic X-ray services, treatment facilities including surgery
or obstetrical care or both, and other definitive medical or surgical treatment
of similar extent.
(20)
HMO--A health maintenance organization as defined in Insurance
Code §843.002(14).
(21)
Health status related factor--Any of the following in
relation to an individual:
(A)
health status;
(B)
medical condition (including both physical and mental illnesses);
(C)
claims experience;
(D)
receipt of health care;
(E)
medical history;
(F)
genetic information;
(G)
evidence of insurability (including conditions arising
out of acts of domestic violence, including family violence as defined by
the Insurance Code Article 21.21-5); or
(H)
disability.
(22)
Individual provider--Any person, other than a physician
or institutional provider, who is licensed or otherwise authorized to provide
a health care service. Includes, but is not limited to, licensed doctor of
chiropractic, dentist, registered nurse, advanced practice nurse, physician
assistant, pharmacist, optometrist, registered optician, and acupuncturist.
(23)
Institutional provider--A provider that is not an individual.
Includes any medical or health related service facility caring for the sick
or injured or providing care or supplies for other coverage which may be provided
by the HMO. Includes but is not limited to:
(A)
General hospitals,
(B)
Psychiatric hospitals,
(C)
Special hospitals,
(D)
Nursing homes,
(E)
Skilled nursing facilities,
(F)
Home health agencies,
(G)
Rehabilitation facilities,
(H)
Dialysis centers,
(I)
Free-standing surgical centers,
(J)
Diagnostic imaging centers,
(K)
Laboratories,
(L)
Hospice facilities,
(M)
Infusion services centers,
(N)
Residential treatment centers,
(O)
Community mental health centers,
(P)
Urgent care centers, and
(Q)
Pharmacies.
(24)
Limited provider network--A subnetwork within an HMO delivery
network in which contractual relationships exist between physicians, certain
providers, independent physician associations and/or physician groups which
limit the enrollees' access to only the physicians and providers in the subnetwork.
(25)
Limited service HMO--An HMO which has been issued a certificate
of authority to issue a limited health care service plan as defined in the
Insurance Code §843.002.
(26)
NAIC--National Association of Insurance Commissioners.
(27)
Out of area benefits--Benefits that the HMO covers when
its enrollees are outside the geographical limits of the HMO service area.
(28)
Pathology services--Services provided by a licensed laboratory
which has the capability of evaluating tissue specimens for diagnoses in histopathology,
oral pathology, or cytology.
(29)
Pharmaceutical services--Services, including dispensing
prescription drugs, under the Pharmacy Act, Occupations Code, Chapter 551,
that are ordinarily and customarily rendered by a pharmacy or pharmacist.
(30)
Pharmacist--An individual provider licensed to practice
pharmacy under the Pharmacy Act, Occupations Code, Chapter 551.
(31)
Pharmacy--A facility licensed under the Pharmacy Act,
Occupations Code, Chapter 551.
(32)
Premium--The prospectively determined rate that is paid
by or on behalf of an enrollee for specified health services.
(33)
Primary care physician or primary care provider--A physician
or individual provider who is responsible for providing initial and primary
care to patients, maintaining the continuity of patient care, and initiating
referral for care.
(34)
Primary HMO--An HMO that contracts directly with, and
issues an evidence of coverage to, individuals or organizations to arrange
for or provide a basic, limited, or single health care service plan to enrollees
on a prepaid basis.
(35)
Provider HMO--An HMO that contracts directly with a primary
HMO to provide or arrange to provide health care services on behalf of the
primary HMO within the primary HMO's defined service area.
(36)
Psychiatric hospital--A licensed hospital which offers
inpatient services, including treatment, facilities and beds for use beyond
24 hours, for the primary purpose of providing psychiatric assessment and
diagnostic services and psychiatric inpatient care and treatment for mental
illness. Such services must be more intensive than room, board, personal services,
and general medical and nursing care. Although substance abuse services may
be offered, a majority of beds must be dedicated to the treatment of mental
illness in adults and/or children.
(37)
Qualified HMO--An HMO which has been federally approved
under Title XIII of the Public Health Service Act, Public Law 93-222, as amended.
(38)
Quality improvement--A system to continuously examine,
monitor and revise processes and systems that support and improve administrative
and clinical functions.
(39)
RBC--Risk-based capital.
(40)
RBC formula--NAIC risk-based capital formula.
(41)
RBC Report--Health Risk-Based Capital Report including
Overview and Instructions for Companies published by the NAIC and adopted
by reference in §11.809 of this title (relating to Risk-Based Capital
for HMOs and Insurers Filing the NAIC Health Blank).
(42)
Recredentialing--The periodic process by which:
(A)
qualifications of physicians and providers are reassessed;
(B)
performance indicators, including utilization and quality
indicators, are evaluated; and
(C)
continued eligibility to provide services is determined.
(43)
Reference laboratory--A licensed laboratory that accepts
specimens for testing from outside sources and depends on referrals from other
laboratories or entities. HMOs may contract with a reference laboratory to
provide clinical diagnostic services to their enrollees.
(44)
Reference laboratory specimen procurement services--The
operation utilized by the reference laboratory to pick up the lab specimens
from the client offices or referring labs, etc. for delivery to the reference
laboratory for testing and reporting.
(45)
Referral specialists (other than primary care)--Physicians
or individual providers who set themselves apart from the primary care physician
or primary care provider through specialized training and education in a health
care discipline.
(46)
Schedule of charges--Specific rates or premiums to be
charged for enrollee and dependent coverages.
(47)
Service area--A geographic area within which direct service
benefits are available and accessible to HMO enrollees who live, reside or
work within that geographic area and which complies with §11.1606 of
this title (relating to Organization of an HMO).
(48)
Single service HMO--An HMO which has been issued a certificate
of authority to issue a single health care service plan as defined in the
Insurance Code §843.002.
(49)
Special hospital--A licensed establishment that:
(A)
offers services, facilities and beds for use for more than
24 hours for two or more unrelated individuals who are regularly admitted,
treated and discharged and who require services more intensive than room,
board, personal services, and general nursing care;
(B)
has clinical laboratory facilities, diagnostic X-ray facilities,
treatment facilities or other definitive medical treatment;
(C)
has a medical staff in regular attendance; and
(D)
maintains records of the clinical work performed for each
patient.
(50)
State-mandated plan--A health plan offered by an HMO,
that contains coverage for all state-mandated benefits, including those as
described in §§21.3515- 21.3518 of this title (relating to State-mandated
Health Benefits in Individual HMO Plans, State-mandated Health Benefits in
Group HMO Plans, State-mandated Health Benefits in Small Employer HMO Plans,
and State-mandated Health Benefits in Large Employer HMO Plans) and offers
basic health care services without limitation as to time and cost.
(51)
Statutory surplus--Admitted assets minus accrued uncovered
liabilities.
(52)
Subscriber--If conversion or individual coverage, the
individual who is the contract holder and is responsible for payment of premiums
to the HMO; or if group coverage, the individual who is the certificate holder
and whose employment or other membership status, except for family dependency,
is the basis for eligibility for enrollment in the HMO.
(53)
Subsidiary--An affiliate controlled by a specified person
directly or indirectly through one or more intermediaries.
(54)
Telehealth service--As defined in Section 57.042, Utilities
Code.
(55)
Telemedicine medical service--As defined in Section 57.042,
Utilities Code.
(56)
Total adjusted capital--An HMO's statutory capital and
surplus/total net worth as determined in accordance with the statutory accounting
applicable to the annual financial statements required to be filed pursuant
to the Insurance Code, and such other items, if any, as the RBC instructions
provide.
(57)
Urgent care--Health care services provided in a situation
other than an emergency which are typically provided in a setting such as
a physician or individual 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 condition of his or her health.
(58)
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.
(59)
Voting security--As defined in the Insurance Code §823.007,
including any security convertible into or evidencing a right to acquire such
security.
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 May 10, 2004.
TRD-200403156
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Effective date: May 30, 2004
Proposal publication date: January 9, 2004
For further information, please call: (512) 463-6327
28 TAC §11.508, §11.509
The amendments are adopted under the Insurance Code Article
20A.09N(j) and §§843.002(2), 843.151 and 36.001. Insurance Code
Article 20A.09N(j) requires the commissioner to adopt rules as necessary to
implement the statutes creating consumer choice plans. Section 843.002(2)
provides that basic health care services are those the commissioner determines
an enrolled population might reasonably require in order to be maintained
in good health. Section 843.151 provides that the commissioner may adopt reasonable
rules as necessary and proper to carry out the provisions of Chapters 843
and 20A. Section 36.001 provides that the commissioner 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.
§11.508.Mandatory Benefit Standards: Group, Individual and Conversion Agreements.
(a)
Each evidence of coverage providing basic health care services
shall provide the following basic health care services when they are provided
by network physicians or providers, or by non-network physicians and providers
as set forth in §11.506(10) or (15) of this title (relating to Mandatory
Contractual Provisions: Group, Individual and Conversion Agreement and Group
Certificate):
(1)
Outpatient services, including the following:
(A)
primary care and specialist physician services;
(B)
outpatient services by other providers;
(C)
diagnostic services, including laboratory, imaging and
radiologic services;
(D)
therapeutic radiology services;
(E)
prenatal services, if maternity benefits are covered;
(F)
outpatient rehabilitation therapies including physical
therapy, speech therapy and occupational therapy;
(G)
home health services, as prescribed or directed by the
responsible physician or other authority designated by the HMO;
(H)
preventive services, including:
(i)
periodic health examinations for adults as required in
Insurance Code Article 20A.09B;
(ii)
immunizations for children as required in Insurance Code
Article 21.53F §3;
(iii)
well-child care from birth as required in Insurance Code
Article 20A.09E;
(iv)
cancer screenings as required in Insurance Code Article
3.70-2(H) relating to mammography;
(v)
cancer screenings as required in Insurance Code Article
21.53F relating to screening for prostate cancer;
(vi)
cancer screenings as required in Insurance Code Article
21.53S relating to screening for colorectal cancer;
(vii)
eye and ear examinations for children through age 17,
to determine the need for vision and hearing correction in accordance with
established medical guidelines; and
(viii)
immunizations for adults in accordance with the United
States Department of Health and Human Services Centers for Disease Control
Recommended Adult Immunization Schedule by Age Group and Medical Conditions,
or its successor.
(I)
no less than 20 outpatient mental health visits per enrollee
per year as may be necessary and appropriate for short-term evaluative or
crisis stabilization services, which must have the same cost-sharing and benefit
maximum provisions as any physical health services; and
(J)
emergency services as required by Insurance Code Article
20A.09Y.
(2)
Inpatient hospital services, including room and board,
general nursing care, meals and special diets when medically necessary, use
of operating room and related facilities, use of intensive care unit and services,
x-ray services, laboratory and other diagnostic tests, drugs, medications,
biologicals, anesthesia and oxygen services, special duty nursing when medically
necessary, radiation therapy, inhalation therapy, administration of whole
blood and blood plasma, and short-term rehabilitation therapy services in
the acute hospital setting.
(3)
Inpatient physician care services, including services performed,
prescribed, or supervised by physicians or other health professionals including
diagnostic, therapeutic, medical, surgical, preventive, referral and consultative
health care services.
(4)
Outpatient hospital services, including treatment services;
ambulatory surgery services; diagnostic services, including laboratory, radiology,
and imaging services; rehabilitation therapy; and radiation therapy.
(b)
In addition to the basic health care services in subsection
(a) of this section, each evidence of coverage shall include coverage for
the following:
(1)
breast reconstruction as required by federal law if the
plan provides coverage for mastectomy. Breast reconstruction is subject to
the same deductible or copayment applicable to mastectomy. Breast reconstruction
may not be denied because the mastectomy occurred prior to the effective date
of coverage;
(2)
prenatal services, delivery and postdelivery care for an
enrollee and her newborn child as required by federal law, if the plan provides
maternity benefits; and
(3)
diabetes self-management training, equipment and supplies
as required in Insurance Code Article 21.53G.
(c)
The benefits described in subsection (a)(1)(F) and (1)(I)(ii)
and (vi) of this section do not apply to small employer plans as defined by
the Insurance Code Chapter 26.
(d)
A state-mandated plan defined in §11.2(b) of this
title (relating to Definitions) shall provide coverage for the basic health
care services as described in subsection (a) of this section, as well as all
state-mandated benefits as described in §§21.3516- 21.3518 of this
title (relating to State-mandated Health Benefits in Individual HMO Plans,
State-mandated Health Benefits in Small Employer HMO Plans, and State-mandated
Health Benefits in Large Employer HMO Plans), and must provide the services
without limitation as to time and cost, other than those limitations specifically
prescribed in this section.
(e)
Nothing in this title shall require an HMO, physician,
or provider to recommend, offer advice concerning, pay for, provide, assist
in, perform, arrange, or participate in providing or performing any health
care service that violates its religious convictions. An HMO that limits or
denies health care services under this subsection shall set forth such limitations
in its evidence of coverage.
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 May 10, 2004.
TRD-200403157
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Effective date: May 30, 2004
Proposal publication date: January 9, 2004
For further information, please call: (512) 463-6327
Subchapter AA. CONSUMER CHOICE HEALTH BENEFIT PLANS
The Commissioner of Insurance adopts new Subchapter AA, §§21.3501
- 21.3505, 21.3510 - 21.3518, 21.3525 - 21.3530, 21.3535, and 21.3540 - 21.3544,
concerning consumer choice health benefit plans. Sections 21.3502, 21.3510
- 21.3518, 21.3530, and 21.3542 are adopted with changes to the proposed text
as published in the January 9, 2004, issue of the
Texas Register
(29 TexReg 297). Sections 21.3501, 21.3503 - 21.3505,
21.3525 - 21.3529, 21.3535, 21.3540 - 21.3541, and 21.3543 - 21.3544 are adopted
without changes and will not be republished.
These adopted new sections are the result of the enactment of Senate Bill
(SB) 541 during the 78th Regular Legislative Session. That legislation added,
among other provisions, Texas Insurance Code Arts. 3.80 and 20A.09N, which
are designed to increase the availability of health insurance coverage by
allowing authorized insurers and health maintenance organizations (HMOs) to
issue health plans that, in whole or in part, do not offer or provide state-mandated
health benefits. In furtherance of this goal of increased availability and
to provide more flexibility in the HMO market, SB 541 also changed the definition
of "basic health care services" in the HMO Act, Texas Insurance Code Chapter
843. The department has adopted amendments to a rule implementing this change,
which is published elsewhere in this issue of the
Texas Register
. The purpose of these rules is to implement the provisions
and the intent of SB 541 by increasing availability of more affordable health
benefit plans; developing a well-defined, efficient process for bringing those
plans to market; and instituting appropriate safeguards to ensure consumer
understanding of and freedom to choose between health benefit plan options.
The department has changed several of the proposed sections as published;
however, none of the changes introduce new subject matter or affect additional
persons than those subject to the proposal as originally published. In response
to comments, the department has changed the various sections as indicated.
In §21.2502, the department added definitions for "health insurer" and
"HMO" because those terms were included in the text of §§21.3525-21.3528
to clarify the applicability of the notice requirements. The department has
added language to §§21.3510, 21.3511, 21.3512, 21.3513, 21.3515,
21.3516, 21.3517, and 21.3518 regarding entitlement to care under Article
21.52B and the requirements of Article 21.52D.
In response to a commenter’s request to remove "upon request" from §21.3530(e),
the department has added subsection (a)(5) that requires that the written
disclosure statement provided to the prospective or current policyholder or
contract holder state that the applicant has a right to receive a copy free
of charge.
In §21.3542(a), the department added language to clarify that a health
carrier must offer consumers the opportunity to apply for a plan with state-mandated
benefits when they offer a consumer choice health benefit plan. The offer
must be in the same category that most closely approximates the consumer choice
health benefit plan offered. In subsection (b)(2), the department removed
the words "in writing" from the requirement that health carriers offer consumer
alternatives in subsection (a), and replaced it with a requirement that the
presentation be identical for both types of plans. In subsection (b)(3), the
department revised the rule by taking out the words, "upon request" to clarify
that if a health carrier is providing premium cost information on one plan,
it must provide that information for the other plan. In subsection (d), the
department changed the rule to allow a health carrier to combine on a single
form the written affirmation and the acknowledgement of the written disclosure
statement required by §21.3530(a)(4). The department has also made minor
changes to correct clerical and typographical errors.
Adopted §21.3501 provides for severability of a provision if it’s
determined to be invalid. Adopted §21.3502 sets forth the definition
of terms used in the subchapter. Adopted §21.3503 contains authority
for health carriers to offer consumer choice health benefit plans. Adopted §21.3504
contains a severability clause. Adopted §21.3505 provides that the rule
applies only to a health plan delivered, issued for delivery, or renewed on
or after the effective date of the subchapter. Adopted §§21.3510
- 21.3518 enumerate the benefits considered "state-mandated health benefits,"
which a health carrier may exclude, for each type of consumer choice health
benefit plan a health carrier may offer.
Adopted §21.3525 sets out the notice that health insurers must include
on each application for a consumer choice health benefit plan, and §21.3526
sets out the notice that health insurers must include on the policy itself.
Adopted §§21.3527 and 21.3528 set out the notices that an HMO must
provide on the application and evidence of coverage. Adopted §21.3529
enumerates duties of agents marketing, soliciting, receiving an application
for, or administering a consumer choice health benefit plan. Adopted §21.3530
provides requirements for a disclosure which each health carrier offering
or providing a consumer choice health benefit plan must provide each prospective
or current policyholder. Adopted §21.3535 addresses requirements for
health carrier retention of the signed disclosure statement required by §21.3530
and the written affirmation required by §21.3542. Adopted §21.3540
requires health carriers to include coverage for direct access to the health
care services of an obstetrical or gynecological care provider. Adopted §21.3541
requires HMOs offering a consumer choice health benefit plan to provide basic
health care services. Adopted §21.3542 requires a health carrier that
offers a consumer choice health benefit plan, to offer the purchaser the opportunity
to apply for a plan that is in the same category that most closely approximates
the consumer choice health benefit plan, and that includes all state-mandated
health benefits. The section also requires a health carrier to obtain written
affirmation that it offered one of these alternative plans, which may be combined
with the written disclosure statement required by §21.3530(a)(4). Adopted §21.3543
details the documents a health carrier must provide when filing a consumer
choice health benefit plan with the department. Adopted §21.3544 addresses
required annual reporting related to consumer choice health benefit plans
which health carriers must make to the department.
SUMMARY OF COMMENTS AND AGENCY’S RESPONSE TO COMMENTS.
General
Comment: A commenter recommends that the department track a number of trends,
including the number of companies offering health coverage who did not offer
coverage prior to the availability of consumer choice plans, the number of
people opting into consumer choice who were previously uninsured, compared
to the number switching from state-mandated plans, or those transferring from
public health insurance to consumer choice, and the number remaining uninsured;
as well as some demographic information about enrollees in state-mandated
versus consumer choice plans.
Agency Response: The adopted sections require tracking of the number of
companies newly offering health coverage which did not offer coverage prior
to the availability of consumer choice plans. The department also collects
similar data through the annual group accident and health data call and will
review the data call form to determine whether additional health plan enrollment
information is necessary to monitor enrollment in consumer choice benefit
plans and fully-mandated plans. The department is working to identify additional
information that health plans can reasonably collect and report, regarding
enrollment and financial experience in consumer choice and fully-mandated
plans.
Comment: A commenter would like the department to track the actuarial impact
on state-mandated health benefit plans of consumer choice plans, as well as
the average premium costs and cost sharing of the different forms of state-mandated
health benefit plans compared to consumer choice plans, including disability
status, age, and gender.
Agency Response: SB 541 gives health carriers great latitude in designing
consumer choice plans. Existing law, to a lesser extent, allows broad flexibility
for health carriers to design fully-mandated plans. Both factors complicate
the development of "average" premium costs and cost-sharing provisions, as
well as cost comparisons between fully-mandated plans and consumer choice
benefit plans. Nonetheless, the department is studying ways to track additional
relevant actuarial information regarding both consumer choice and fully-mandated
plans. Careful consideration of required reporting is essential so as not
to contravene one of the purposes of SB 541, which is to provide more affordable
health care coverage options.
Comment: A commenter suggests that the department track trends in the number
of companies offering health coverage who did not offer health coverage prior
to the availability of consumer choice plans, and the percentage of Texans
who remain uninsured compared to the percentage during the years preceding
the availability of consumer choice plans.
Agency Response: The adopted data collection form includes a question to
determine the number of companies offering health coverage who did not offer
health coverage prior to the availability of consumer choice plans. The department
monitors the percentage of uninsured Texans through the annual Current Population
Survey (CPS) conducted by the U.S. Census Bureau.
Comment: A commenter suggests that the department track the effect the
availability of consumer choice plans has on the Texas Health Insurance Risk
Pool.
Agency Response: The department closely monitors the Risk Pool as part
of its statutory duties. Moreover, the department is specifically studying,
as directed by SB 467, possible expansion of pool eligibility. The department
will consider how to include the impact on the risk pool as part of its ongoing
study of reporting requirements, but declines to make any specific changes
at this time.
Comment: A commenter recommends that the department convene a workgroup
composed of carriers, employers, consumers, and consumer advocates to discuss
insurance approaches that focus on health promotion and disease prevention
activities.
Agency Response: While the department meets regularly with interested parties
and is always open to the possibility of bringing together such groups to
consider any improvement in the coverage of health care, the department declines
to adopt this suggestion at this time.
Comment: A commenter suggests that the rule require carriers that issue
ID cards for consumer choice plans to clearly indicate on the ID card that
the patient’s coverage is through a consumer choice plan.
Agency Response: The department declines to adopt this requirement at this
time. The 78th Texas Legislature enacted certain requirements for ID cards
in SB 418. The rule requiring identification of Texas Department of Insurance
(TDI) regulated coverage on a managed care plan ID card took effect on January
1, 2004, and the department believes it needs to assess the impact of that
rule before considering extending ID card requirements. Moreover, SB 418 also
created a verification process which should address concerns regarding the
scope of coverage of consumer choice plans.
Comment: A commenter suggests that TDI create educational materials that
will clearly delineate what must be provided, at a minimum, in consumer choice
health plans.
Agency Response: Consumer choice health plans must provide the same benefits
as all other health plans, except for the state-mandated health benefits they
may exclude. Various provisions of the Insurance Code and rules, such as Article
26.43 and §843.201, require the plan documents to express in plain language
what the plan provides, which should be sufficient for informational and comparison
purposes. The department is preparing educational materials concerning consumer
choice plans and the various state-mandated health benefits which they may
omit.
Comment: A commenter suggests that studies on the costs of mandated benefits
are flawed.
Agency Response: The 78th Texas Legislature enacted SB 541 to create more
affordable and flexible health care coverage options. The bill specifically
authorizes the issuance of coverage that, in whole or in part, does not offer
or provide state-mandated health benefits. The department will use the reporting
requirements in the statute and rule to monitor the effect of omitting state-mandated
health benefits on the cost of health care coverage.
Comment: A commenter believes the rule as drafted is too confusing and
complicated; that it will be too costly to interpret, design, file, and seek
approval of consumer choice plans; and that health carriers will choose not
to file consumer choice health benefit plans.
Agency Response: A good number of health carriers have already filed and
received approval of consumer choice health benefit plans. Department staff
has provided guidance on the law as necessary and remains ready to assist
all other carriers with consumer choice plan filings. Essentially, the rule
outlines a simple structure for creating a consumer choice health benefit
plan. If a coverage or benefit is listed as a state-mandated health benefit
for a particular plan type, then a carrier need not include that coverage
or benefit in a consumer choice health benefit plan. For all other plan requirements,
a health carrier must simply follow the law as it would apply to any other
health benefit plan. The department also notes that SB 541 requires carriers
participating in the small employer market to offer a consumer choice plan.
Division 2. State Mandated Health Benefits:
Comment: A commenter requests clarification in these sections to reference
exclusions for limitations or restrictions on deductibles, coinsurance, copayments,
or any annual or lifetime maximum benefit amounts. The commenter also asks
for a reference to the exclusion of a specific category of licensed healthcare
practitioner in compliance with Texas Insurance Code Article 3.80, §3(a)
(2) and (3).
Agency Response: The reference to the requested exclusions is found in §21.3501(8),
which, along with SB 541, defines "state-mandated health benefits" to include
cost-sharing limitations or restrictions as well as entitlement to care from
a specific category of licensed healthcare practitioner. The rule accordingly
classifies those items as "state-mandated health benefits" in the various
sections of Division 2.
Comment: Commenters question why the complications of pregnancy mandate
was not exempted from coverage.
Agency Response: The department determined that the provisions of 28 TAC §21.405(1)
do not constitute a "state-mandated health benefit" as defined by SB 541.
The rule prohibits a plan from treating complications of pregnancy differently
than any other illness or sickness under the policy and it does not create
coverage for specific health care services or benefits.
Comment: Commenters question why the Alzheimer’s disease mandate
was not exempted from coverage.
Agency Response: Article 3.78 does not constitute a "state-mandated health
benefit" as defined by SB 541. The statute provides that a clinical diagnosis
of Alzheimer's disease by a physician licensed in this state shall satisfy
the requirement for demonstrable proof of organic disease or other proof under
the coverage. The statute only applies where the policy already provides coverage
for Alzheimer's disease, thus it does not create coverage for specific health
care services or benefits.
Comment: Commenters seek clarification regarding administrative mandates
allowing enrollees to select a specific category of licensed health care practitioner
under Insurance Code Articles 21.52B, 21.52D, 21.52L, 21.53, 21.53B, 21.53L,
and 21.53N.
Agency Response: The department appreciates the opportunity to clarify
the law, and a response to each mandate follows. Article 21.52B entitles an
insured/enrollee to receive care from a specific category of health care practitioners,
thus making it a "state-mandated health benefit" under SB 541. In response
to comments the department has revised various sections in Division 2 of the
rule to include this provision as a state mandated health benefit where appropriate.
SB 541 specifically excludes services of practitioners listed in Articles
21.52 and 3.70-3C from the definition of "state-mandated health benefits."
Article 21.52D was not specifically excluded from the definition of state-mandated
health benefits under SB 541. Therefore, the requirements of Article 21.52D
that exceed the requirements of Article 21.52 and Article 3.70-2 do not apply
to consumer choice plans. The department has revised various sections in Division
2 of the rule to reflect this.
The Article 21.52L requirement of health benefit plan coverage for prescription
contraceptive drugs and devices do not allow enrollees to select a specific
category of licensed health care practitioners.
The department did not include Article 21.53 in the rule as a "state-mandated
health benefit," because Article 21.52 entitles an insured/enrollee to receive
care from a licensed dentist.
The provisions of Article 21.53B regarding use of osteopathic hospitals
is neither plan-specific nor required to be provided. Accordingly, it does
not constitute a "state-mandated health benefit" under SB 541.
The pharmacy benefit identification card required by Article 21.53L does
not allow enrollees to select a specific category of licensed health care
practitioners, nor does it meet any of the other standards required to make
it a "state-mandated health benefit." The Article 21.53N requirement of equal
pay for reproductive health and oncology services for women does not allow
enrollees to select a specific category of licensed health care practitioners,
nor does it meet any of the other standards required to make it a "state-mandated
health benefit."
Comment: Commenters note that the rule does not provide for an exception
to the Article 26.09 point-of-service mandate for HMOs. The commenter believes
requiring health plans to offer a point of service option will increase health
care costs and should be exempt.
Agency Response: Because SB 541 does not exempt requirements under Article
26.09, carriers must still offer a point-of-service option if a network-based
delivery system offered by an HMO is the only plan offered by the employer.
Article 26.09 does not apply to small employers.
Comment: A commenter proposes that the department add provisions in the
rules so that when mandates are added by the legislature, they can be added
into the list in the rules automatically without having to go through the
rule amendment process.
Agency Response: The department declines to adopt this suggestion. There
is generally sufficient lead time between the passage of legislation and its
effective date to allow for rule amendment. In the event the legislature adds
additional health mandates, the department would also communicate its interpretation
of whether new mandates fit the SB 541 definition of "state-mandated health
benefits" at the earliest possible time to facilitate coverage changes prior
to rule amendment.
Comment: A commenter questions why federal statutes are not addressed in
the rules.
Agency Response: The purpose of the rules is to implement SB 541, which
allows exclusion only of "state-mandated health benefits." Articles 3.80(3)(b)
and 20A.09N(d) specifically provide that the term "state-mandated health benefits"
does not include health benefits that are mandated by federal law. Thus, although
a health carrier is not required to include a state-mandated benefit in a
consumer choice plan, it must continue to include any similar federally-mandated
benefit. For example, a health carrier need not include the state-mandated
benefit in Article 21.53I (coverage for reconstructive surgery incident to
mastectomy) in a consumer choice plan. The health carrier, however, must still
include the federally-mandated coverage for reconstructive surgery after mastectomy
set forth in the federal Women’s Health and Cancer Rights Act of 1998
(WHCRA).
Comment: A commenter recommends that the proposed regulations list items
that are included in policies, instead of items that are excluded. The commenter
indicated that listing diabetes care as an excluded item could allow insurers
to exclude diabetes equipment, supplies, and self-management programs.
Agency Response: The department declines to revise the rule. Consumer choice
policies must include all the same provisions as other policies, except as
allowed by SB 541. The rule lists those items that may be excepted. Coverage
for diabetes under Article 21.53G is still required for all consumer choice
plans.
§21.3512(5) & §21.3518(9)
Comment: Commenters request clarification on the extent of limitations
or restrictions on coinsurance, as well as copayments and deductibles that
would no longer be imposed. The commenters recommend that the rule allow both
deductible and copayment options for HMOs and also delete restrictions on
the amount of copayments and deductibles, which the commenter believes will
allow HMOs to compete with other entities offering benefits lower than those
required of HMOs.
Agency Response: The rule specifically recognizes as "state-mandated health
benefits" existing laws regarding cost-sharing provisions in health plans.
These include, for example, 28 TAC §3.3704(a)(6), which governs the difference
between levels of coverage in a preferred provider benefit plan, and 28 TAC §11.506(2)(A),
which governs the copayments and deductibles an HMO may include in an evidence
of coverage. Other laws, however, which are not "state-mandated health benefits,"
may restrict the extent to which a health carrier may require cost-sharing
from an enrollee; one such example is Article 3.70-3C, §8, which requires
that a health carrier issuing a preferred provider benefit plan make both
levels of benefits reasonably available to all insureds within a designated
service area. Carriers must also be prepared to demonstrate compliance with
other requirements of the Insurance Code affecting the reasonableness of the
cost of coverage, including Articles 1.02(b), 3.42(k), 20A.09(b), 20A.09(k),
and §843.082(3).
§21.3518
Comment: Commenters question whether this rule extends to prescription
drug riders.
Agency Response: Yes, SB 541 allows a health carrier to revise a rider
related to a consumer choice health benefit plan in accordance with the new
statutory standard.
§§21.3525, 21.3526, 21.3527, 21.3528, 21.3529, 21.3530, 21.3542,
and 21.3543
Comment: Some commenters believe the rule's notice, disclosure, reporting,
and filing provisions are excessive and will make selling and obtaining these
plans difficult for health carriers, employers, and insureds. Other commenters,
however, contend that all consumers, including certificate holders, should
receive a copy of all notices and disclosures regarding which state-mandated
benefits are not included, the comparative premium costs between these plans,
and a notice that purchasing one of these plans may limit their future coverage
options. In that same vein, some commenters suggested that the department
require employers to distribute copies of the signed disclosure document to
all covered employees. Other commenters proposed that a notice of what is
not covered by a consumer choice health benefit plan must be provided to enrollees,
some specifically suggesting amendment of §21.3530(e) and (g) to require
carriers to provide the notices to enrollees and certificate holders. Commenters
cited concern as to whether a consumer whose employer purchases a consumer
choice health benefit plan will receive any of the notices proposed by TDI.
Agency Response: Commenters have expressed various opposing viewpoints
on the notice and disclosure provisions. The department drafted the proposal
so as to balance the consumers' need for adequate and meaningful disclosure
with the carriers' interest in simplifying compliance. The department notes
that with regard to notice to all enrollees, a certificate holder must be
provided a certificate of coverage as required by statute, which will reveal
the extent to which a consumer choice plan provides coverage. The department
thus declines at this time to extend notice and disclosure requirements to
the extent requested by some commenters. The department also notes that SB
541 does not authorize it to require an employer to make distributions of
notices to their employees. The law places group policyholders in a position
of responsibility for certificate holders, and the law requires health carriers
to provide the group policyholder with all required notices and disclosures.
With regard to the comments regarding the excessiveness of notices, disclosures,
filings, and reporting, many of the duties the rule imposes are the result
of statutory direction. The new statutory provisions at Articles 3.80, §5
and 20A.09N (f) require the notices addressed by §§21.3525 -- 21.3528.
To clarify the applicability of these sections, the department has added language
specifying that the notices in §§21.3525 and 21.3526 apply to only
health insurers and the notices in §§21.3527 and 21.3528 apply only
to HMOs. The duties of agents set out in §21.3529 derive from the direction
in the statutory notice to all prospective and current insureds or contract
holders to consult with their agent regarding which state-mandated benefits
are excluded under the plan, Articles 3.80 §5 and 20A.09N(f), as well
as from the duty of health carriers to provide certain disclosures to prospective
and current policyholders and contract holders, Articles 3.80, §6 and
20A.09N(g). Article 3.80, §6 and Article 20A.09N(g) prescribe the form
of disclosures addressed by §21.3530(a) and (b) and Form CCP 1. Section
21.3530(a)(5) and (e) clarify the carrier's statutory duties both to provide--and
retain--the disclosure statement. Section 21.3530(c) and (d) address the timing
of the disclosure and not its content. Section 21.3530(f) requires disclosure
in a manner which recognizes the similarity between association and individual
coverage.
The department based the written affirmation requirement of §21.3542(d)
on its experience with marketing of the promulgated basic and catastrophic
small employer health benefit plans. In response to comments, the department
has revised this subsection to provide that a health carrier may combine this
written affirmation on a single form with the acknowledgement of the written
disclosure statement required in §21.3530(a)(4). Finally, the plan filing
requirements in §21.3543 generally follow existing plan filing requirements
of the department, with the exception of calculations essential for providing
rate information required by the statute in Article 3.80, §9 and Article
20A.09N(l). For example, §21.3543(2)(B) requires a carrier to include
a statement of the reduction in premium resulting from the differences in
coverage and design between the consumer choice health benefit plan and an
identical plan with all the state-mandated health benefits.
§21.3530(a)(3)
Comment: A commenter recommends deletion, for plans other than individual
plans, of the requirement that the written disclosure state that purchase
of the plan may limit future coverage options.
Agency Response: The department believes the requirement is essential to
ensure adequate disclosure for markets such as small employer, or an individual
participating in an association group plan, and can be included as part of
the disclosure already required by statute.
§21.3530(e)
Comment: A commenter suggests striking the phrase "upon request," as a
consumer should have the opportunity to review the disclosure along with other
marketing materials outside the pressure of a sales meeting.
Agency Response: The rule requires a health carrier to furnish a copy of
the disclosure to the consumer upon request. The purpose of SB 541, to increase
flexibility and decrease the cost of health care coverage, supports providing
a copy of the disclosure only when the consumer requests it. The department
has changed the proposal by adding §21.3530(a)(5) to require that the
disclosure state that the applicant has a right to receive a copy free of
charge. The department will monitor carrier practices and consumer comments
and will consider amending the rule if additional requirements are necessary
to ensure that consumers have a full and fair opportunity to review the disclosure.
§21.3542
Comment: A commenter states that the section appears to require that a
health carrier offering one or more consumer choice health benefit plans must
also make available a policy that is comparable to each consumer choice health
benefit plan. The commenter reads this section to require a health carrier
to offer a distinctive policy form as a complement to each consumer choice
plan. The commenter asserts that such a provision would exceed the statutory
requirement.
Agency Response: The rule does not necessarily require an offer of a unique
plan which includes all state-mandated benefits to correspond to each consumer
choice plan a health carrier offers. SB 541 seeks to provide consumers additional
affordable health coverage options from which to choose. To implement this
goal, §21.3542 requires a health carrier to offer plans that include
all state-mandated benefits in accordance with the type and number of consumer
choice plans it offers. As an example, if a health carrier offers several
different consumer choice major medical indemnity plans, then the health carrier
could satisfy this requirement by offering one fully-mandated major medical
indemnity plan. Alternatively, if a health carrier were offering one consumer
choice hospital-surgical indemnity plan and one consumer choice major medical
indemnity plan, then the carrier would have to offer one fully-mandated hospital-surgical
indemnity plan and one fully-mandated major medical indemnity plan. In response
to the comment, the department has revised the term "comparable" to "the same
category that most closely approximates." The department has also added language
to clarify the limitations on the carrier's duty in this context.
§21.3542(b)(3)
Comment: A commenter suggests that this section requires a carrier to reflect
numerous items showing the difference between a consumer choice plan and a
fully mandated plan. The commenter believes this requirement does not come
from statute and asks for its removal.
Agency Response: SB 541 requires the offer of a policy or evidence of coverage
with state-mandated health benefits. Many of the section’s requirements
concern essential elements of the acquisition of health care coverage, for
example, the requirement to provide a summary of benefits under Article 26.71,
an outline of coverage under 28 TAC §§3.3090 and 3.3093, and the
disclosure requirements under §843.205. The other provisions simply assure
fair marketing of both state-mandated health plans and consumer choice plans.
The department has clarified the requirements to simplify administration of
and compliance with the rule.
§21.3542(b)(3)
Comment: A commenter suggests striking the phrase "upon request," as consumers
pay for the privilege of completing an application and should be entitled
to information about premium cost and an explanation of the differences between
plans.
Agency Response: The department has revised the rule to clarify a health
carrier’s duty under this requirement, which is to present the fully-mandated
plan in the same manner as it presents the consumer choice plan. The adopted
rule requires presentation of such elements as premium cost, outline of coverage,
and marketing materials in the same manner, for both consumer choice plans
and fully-mandated plans. Accordingly, If a health carrier is providing premium
cost information on one plan, the rule requires that it provide that information
in the same format for the other plan as well.
§21.3542(d)
Comment: A commenter suggests that, to avoid confusion, this should be
part of the disclosure document signed by the consumer.
Agency Response: The department agrees with this suggestion and has revised
the rule to give health carriers the option of combining these documents.
§21.3544
Comment: A commenter suggests that the reporting requirements enumerated
under this section are not required by statute, are burdensome and expensive,
and asks for their removal.
Agency Response: The department declines to make this change. In SB 541,
the Legislature sought to provide Texans with "more affordable and flexible"
health coverage options, as well as increase availability of health coverage,
by allowing carriers to offer coverage that does not include state-mandated
health benefits. To determine whether SB 541 and the consumer choice plans
achieve these intended effects, the department must collect information sufficient
to determine whether the advent of such plans expanded health coverage options
beyond that currently available under plans with all state-mandated health
benefits. As an example, the department must be able to differentiate between
changes to coverage for populations with existing coverage and coverage provided
for those not previously covered. The public benefits derived from documenting
the costs and benefits of consumer choice plans over currently available plans
justifies the expense to carriers to document such changes.
Moreover, the rule's required reports complement existing reporting requirements.
For example, small employer carriers already report much of this rule's required
information in existing Figure 48. The department intends to align existing
Figure 48 reporting requirements with new SB 541 requirements to eliminate
any duplication. Moreover, Insurance Code §38.252 requires the commissioner
to designate by rule the data that health carriers must collect and report
to "determine the impact of mandated benefits and mandated offers of coverage."
Providing data from SB 541 plans comparable to that obtained in connection
with mandated benefits is critical to evaluate the effectiveness of consumer
choice plans.
§21.3544(5)
Comment: A commenter suggests that the department collect information for
both consumer choice health benefit plans and fully-mandated plans, to obtain
adequate information for meaningful analysis of the impact of consumer choice
plans on the ranks of the uninsured.
Agency Response: The department already collects this information for small
employer health benefit plans, which comprise approximately one third of the
fully-insured population in Texas. This practice will provide figures for
analysis. Moreover, the consumer choice data collection form and data collected
through the annual group accident and health data call will allow for additional
comparison of the two types of plans in both the small and large employer
markets.
NAMES OF THOSE COMMENTING FOR AND AGAINST THE SECTIONS.
FOR WITH CHANGES: Advocacy, Incorporated; American Diabetes Association;
Blue Cross Blue Shield of Texas; Coalition for Texans with Disabilities; Community
First Health Plans, Inc.; Consumers Union; National Multiple Sclerosis Society
of Texas; NEXT; Office of Public Insurance Counsel; TFE Company; Texas Association
of Business; Texas Association of Health Plans; Texas Association of Life
and Health Insurers; Texas Medical Association; Texas Physical Therapy Association;
and Women's Health And Family Planning Association of Texas.
1.
GENERAL PROVISIONS
28 TAC §§21.3501 - 21.3505
The new sections are adopted under the Insurance Code Articles
3.80, §7, 20A.09N(j), and §36.001. Articles 3.80, §7 and 20A.09N(j)
require the commissioner to adopt rules as necessary to implement the statutes
creating consumer choice health benefit plans. Section 36.001 provides that
the commissioner 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.
§21.3502.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Basic health care services--Health care services that the
commissioner determines an enrolled population might reasonably need to be
maintained in good health.
(2)
Commissioner--The commissioner of insurance.
(3)
Consumer choice health benefit plan--A group or individual
accident or sickness insurance policy, or evidence of coverage that, in whole
or in part, does not offer or provide state-mandated health benefits, but
that provides creditable coverage as defined by Insurance Code Article 26.035(a)
or Article 3.70-1.
(4)
Consumer choice of benefits health insurance plan--A consumer
choice health benefit plan.
(5)
Department--The Texas Department of Insurance.
(6)
HMO--a person defined in Insurance Code §843.002(14).
(7)
Health carrier--Any entity authorized under the Insurance
Code or another insurance law of this state that provides health benefits
in this state, including an insurance company, a group hospital service corporation
under Insurance Code Chapter 842, a health maintenance organization under
Insurance Code Article 20A and Chapter 843, and a stipulated premium company
under Insurance Code Chapter 884.
(8)
Health insurer--Any entity authorized under this code or
another insurance law of this state that provides health insurance or health
benefits in this state, including an insurance company, a group hospital service
corporation under Chapter 842 of the Insurance Code, and a stipulated premium
company under Chapter 884 of the Insurance Code.
(9)
Standard health benefit plan--A consumer choice health
benefit plan.
(10)
State-mandated health benefits--
(A)
Coverage required under the Insurance Code, this code,
or other law of this state to be provided in an individual, blanket, or group
policy for accident and health insurance, a contract for coverage of a health-related
condition, or an evidence of coverage that:
(i)
includes coverage for specific health care services or
benefits;
(ii)
places limitations or restrictions on deductibles, coinsurance,
copayments, or any annual or lifetime maximum benefit amounts, including limitations
provided in Insurance Code Article 20A.09(l) (as added by Section 7, Chapter
1026, Acts of the 75th Legislature, Regular Session, 1997); or
(iii)
includes a specific category of licensed health care
practitioner from whom an insured or enrollee is entitled to receive care.
(B)
Do not include benefits or coverage mandated by federal
law, or standard provisions or rights required under the Insurance Code, this
code, or other law of this state, to be provided in an individual, blanket,
or group policy for accident and health insurance, a contract for coverage
of a health-related condition, or an evidence of coverage unrelated to specific
health illnesses, injuries, or conditions of an insured or enrollee, including
those benefits or coverages enumerated in Insurance Code Articles 3.80, §3(b)
and 20A.09N(d).
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 May 13, 2004.
TRD-200403232
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Effective date: June 2, 2004
Proposal publication date: January 9, 2004
For further information, please call: (512) 463-6327
28 TAC §§21.3510 - 21.3518
The new sections are adopted under the Insurance Code Articles
3.80, §7, 20A.09N(j), and §36.001. Articles 3.80, §7 and 20A.09N(j)
require the commissioner to adopt rules as necessary to implement the statutes
creating consumer choice health benefit plans. Section 36.001 provides that
the commissioner 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.
§21.3510.State-mandated Health Benefits in Individual Indemnity Policies.
The following enumerated items are state-mandated health benefits a
health insurer does not have to include in an individual indemnity consumer
choice health benefit plan:
(1)
coverage of contraceptive drugs and devices as required
by Insurance Code Article 21.52L and §21.404(3) of this title (relating
to Underwriting);
(2)
coverage of a minimum stay for maternity as required by
Insurance Code Article 21.53F;
(3)
coverage of reconstructive surgery incident to mastectomy
as required by Insurance Code Article 21.53I;
(4)
coverage of acquired brain injury treatment/services as
required by Insurance Code Article 21.53Q;
(5)
limitations or restrictions on coinsurance imposed by §3.3704(a)(6)
of this title (relating to Freedom of Choice: Availability of Preferred Providers);
(6)
coverage of a minimum stay for mastectomy treatment/services
as required by Insurance Code Article 21.52G;
(7)
coverage of diabetes care as required by Insurance Code
Article 21.53D;
(8)
coverage of telehealth and telemedicine as required by
Insurance Code Article 21.53F;
(9)
coverage of off-label drugs as required by Insurance Code
Article 21.53M;
(10)
coverage of mental/nervous disorders with demonstrable
organic disease as required by §3.3057(d) of this title (relating to
Standards for Exceptions, Exclusions, and Reductions Provision);
(11)
coverage of transplant donor coverage as required by §3.3040(h)
of this title (relating to Prohibited Policy Provisions);
(12)
offer of coverage for therapies for children with developmental
delays as required by Insurance Code Article 21.53F;
(13)
entitlement to care under Article 21.52B relating to pharmaceutical
services; and
(14)
the requirements of Article 21.52D regarding the use of
optometrists and ophthalmologists by managed care plans, that exceed the entitlement
to select a practitioner under Article 21.52 and Article 3.70-2.
§21.3511.State-mandated Health Benefits in Group Association Indemnity Policies.
The following enumerated items are state-mandated health benefits that
a health insurer does not have to include in a group association indemnity
consumer choice health benefit plan:
(1)
coverage of contraceptive drugs and devices as required
by Insurance Code Article 21.52L and §21.404(3) of this title (relating
to Underwriting);
(2)
coverage of a minimum stay for maternity as required by
Insurance Code Article 21.53F;
(3)
coverage of reconstructive surgery incident to mastectomy
as required by Insurance Code Article 21.53I;
(4)
coverage of acquired brain injury treatment/services as
required by Insurance Code Article 21.53Q;
(5)
limitations or restrictions on coinsurance imposed by §3.3704(a)(6)
of this title (relating to Freedom of Choice: Availability of Preferred Providers);
(6)
the offer of in vitro fertilization coverage as required
by Insurance Code Article 3.51-6, §3A;
(7)
coverage of HIV, AIDS, or HIV-related illnesses as required
by Insurance Code Article 3.51-6, §3C;
(8)
coverage of chemical dependency and stays in a chemical
dependency treatment facility as required by Insurance Code Article 3.51-9;
(9)
coverage of serious mental illness as required by Insurance
Code Article 3.51-14;
(10)
the offer of mental or emotional illness coverage as required
by Insurance Code Article 3.70-2(F);
(11)
coverage of inpatient mental health and stays in a psychiatric
day treatment facility as required by Insurance Code Article 3.70-2(F);
(12)
the offer of speech and hearing coverage as required by
Insurance Code Article 3.70-2(G);
(13)
the offer of home health care coverage as required by
Insurance Code Article 3.70-3B;
(14)
coverage of stays in a crisis stabilization unit and/or
residential treatment center for children and adolescents as required by Insurance
Code Article 3.72;
(15)
coverage of a minimum stay for mastectomy treatment/services
as required by Insurance Code Article 21.52G;
(16)
continuation of coverage of certain drugs under a drug
formulary as required by Insurance Code Article 21.52J;
(17)
coverage of diagnosis and treatment affecting temporomandibular
joint and treatment for a person unable to undergo dental treatment in an
office setting or under local anesthesia as required by Insurance Code Article
21.53A;
(18)
coverage of bone mass measurement for osteoporosis as
required by Insurance Code Article 21.53C;
(19)
coverage of diabetes care as required by Insurance Code
Article 21.53D;
(20)
coverage of telehealth and telemedicine as required by
Insurance Code Article 21.53F;
(21)
coverage of off-label drugs as required by Insurance Code
Article 21.53M;
(22)
offer of coverage for therapies for children with developmental
delays as required by Insurance Code Article 21.53F;
(23)
entitlement to care under Article 21.52B relating to pharmaceutical
services; and
(24)
the requirements of Article 21.52D regarding the use of
optometrists and ophthalmologists by managed care plans, that exceed the entitlement
to select a practitioner under Article 21.52 and Article 3.70-2.
§21.3512.State-mandated Health Benefits in Small Employer Indemnity Policies.
The following enumerated items are state-mandated health benefits that
a health insurer does not have to include in a small employer group indemnity
consumer choice health benefit plan:
(1)
coverage of contraceptive drugs and devices as required
by Insurance Code Article 21.52L and §21.404(3) of this title (relating
to Underwriting);
(2)
coverage of a minimum stay for maternity as required by
Insurance Code Article 21.53F;
(3)
coverage of reconstructive surgery incident to mastectomy
as required by Insurance Code Article 21.53I;
(4)
coverage of acquired brain injury treatment/services as
required by Insurance Code Article 21.53Q;
(5)
limitations or restrictions on coinsurance imposed by §3.3704(a)(6)
of this title (relating to Freedom of Choice: Availability of Preferred Providers);
(6)
the offer of in vitro fertilization coverage as required
by Insurance Code Article 3.51-6, §3A;
(7)
coverage of HIV, AIDS, or HIV-related illnesses as required
by Insurance Code Article 3.51-6, §3C;
(8)
coverage of chemical dependency and stays in a chemical
dependency treatment facility as required by Insurance Code Article 3.51-9;
(9)
the offer of serious mental illness coverage as required
by Insurance Code Article 3.51-14;
(10)
the offer of mental or emotional illness coverage as required
by Insurance Code Article 3.70-2(F);
(11)
coverage of inpatient mental health and stays in a psychiatric
day treatment facility as required by Insurance Code Article 3.70-2(F);
(12)
the offer of speech and hearing coverage as required by
Insurance Code Article 3.70-2(G);
(13)
the offer of home health care coverage as required by
Insurance Code Article 3.70-3B;
(14)
coverage of stays in a crisis stabilization unit and/or
residential treatment center for children and adolescents as required by Insurance
Code Article 3.72;
(15)
coverage of bone mass measurement for osteoporosis as
required by Insurance Code Article 21.53C;
(16)
entitlement to care under Article 21.52B relating to pharmaceutical
services; and
(17)
the requirements of Article 21.52D regarding the use of
optometrists and ophthalmologists by managed care plans, that exceed the entitlement
to select a practitioner under Article 21.52 and Article 3.70-2.
§21.3513.State-mandated Health Benefits in Large Employer Indemnity Policies.
The following enumerated items are state-mandated health benefits that
a health insurer does not have to include in a large employer group indemnity
consumer choice health benefit plan:
(1)
coverage of contraceptive drugs and devices as required
by Insurance Code Article 21.52L and §21.404(3) of this title (relating
to Underwriting);
(2)
coverage of a minimum stay for maternity as required by
Insurance Code Article 21.53F;
(3)
coverage of reconstructive surgery incident to mastectomy
as required by Insurance Code Article 21.53I;
(4)
coverage of acquired brain injury treatment/services as
required by Insurance Code Article 21.53Q;
(5)
limitations or restrictions on coinsurance imposed by §3.3704(a)(6)
of this title (relating to Freedom of Choice: Availability of Preferred Providers);
(6)
the offer of in vitro fertilization coverage as required
by Insurance Code Article 3.51-6, §3A;
(7)
coverage of HIV, AIDS, or HIV-related illnesses as required
by Insurance Code Article 3.51-6, §3C;
(8)
coverage of chemical dependency and stays in a chemical
dependency treatment facility as required by Insurance Code Article 3.51-9;
(9)
the offer of mental or emotional illness coverage as required
by Insurance Code Article 3.70-2(F);
(10)
coverage of inpatient mental health and stays in a psychiatric
day treatment facility as required by Insurance Code Article 3.70-2(F);
(11)
the offer of speech and hearing coverage as required by
Insurance Code Article 3.70-2(G);
(12)
the offer of home health care coverage as required by
Insurance Code Article 3.70-3B;
(13)
coverage of stays in a crisis stabilization unit and/or
residential treatment center for children and adolescents as required by Insurance
Code Article 3.72;
(14)
coverage of a minimum stay for mastectomy treatment/services
as required by Insurance Code Article 21.52G;
(15)
continuation of coverage of certain drugs under a drug
formulary as required by Insurance Code Article 21.52J;
(16)
coverage of diagnosis and treatment affecting temporomandibular
joint and treatment for a person unable to undergo dental treatment in an
office setting or under local anesthesia as required by Insurance Code Article
21.53A;
(17)
coverage of bone mass measurement for osteoporosis as
required by Insurance Code Article 21.53C;
(18)
coverage of diabetes care as required by Insurance Code
Article 21.53D;
(19)
coverage of telehealth and telemedicine as required by
Insurance Code Article 21.53F;
(20)
coverage of off-label drugs as required by Insurance Code
Article 21.53M;
(21)
offer of coverage for therapies for children with developmental
delays as required by Insurance Code Article 21.53F;
(22)
entitlement to care under Article 21.52B relating to pharmaceutical
services; and
(23)
the requirements of Article 21.52D regarding the use of
optometrists and ophthalmologists by managed care plans, that exceed the entitlement
to select a practitioner under Article 21.52 and Article 3.70-2.
§21.3514.State-mandated Health Benefits in Blanket Indemnity Policies.
The category of group to which the health carrier is issuing coverage
determines which benefits are state-mandated health benefits for blanket indemnity
insurance policies.
§21.3515.State-mandated Health Benefits in Individual HMO Plans.
The following enumerated items are state-mandated health benefits that
an HMO does not have to include in an individual HMO consumer choice health
benefit plan:
(1)
coverage of contraceptive drugs and devices as required
by Insurance Code Article 21.52L and §21.404(3) of this title (relating
to Underwriting);
(2)
coverage of childhood immunizations as required by Insurance
Code Article 20A.09F;
(3)
coverage of a minimum stay for maternity as required by
Insurance Code Article 21.53F;
(4)
coverage of reconstructive surgery incident to mastectomy
as required by Insurance Code Article 21.53I;
(5)
coverage of acquired brain injury treatment/services as
required by Insurance Code Article 21.53Q;
(6)
treatment by a non-primary care specialist as a primary
care provider as required by Insurance Code Article 20A.09(a)(3)(D);
(7)
coverage of rehabilitation therapies as required by Insurance
Code Article 20A.09(a)(4);
(8)
limitations or restrictions on copayments imposed by §11.506(2)(A)
of this title (relating to Mandatory Contractual Provisions: Group, Individual
and Conversion Agreement and Group Certificate);
(9)
limitations or restrictions on deductibles imposed by §11.506(2)(B)
of this title;
(10)
coverage of a minimum stay for mastectomy treatment/services
as required by Insurance Code Article 21.52G;
(11)
coverage of diabetes care as required by Insurance Code
Article 21.53D;
(12)
coverage of telehealth and telemedicine as required by
Insurance Code Article 21.53F;
(13)
coverage of off-label drugs as required by Insurance Code
Article 21.53M;
(14)
offer of coverage for therapies for children with developmental
delays as required by Insurance Code Article 21.53F;
(15)
entitlement to care under Article 21.52B relating to pharmaceutical
services; and
(16)
the requirements of Article 21.52D regarding the use of
optometrists and ophthalmologists by managed care plans, that exceed the entitlement
to select a practitioner under Article 21.52 and Article 3.70-2.
§21.3516.State-mandated Health Benefits in Group HMO Plans.
The following enumerated items are state-mandated health benefits that
an HMO does not have to include in a non-employer group HMO consumer choice
health benefit plan:
(1)
coverage of contraceptive drugs and devices as required
by Insurance Code Article 21.52L and §21.404(3) of this title (relating
to Underwriting);
(2)
coverage of childhood immunizations as required by Insurance
Code Article 20A.09F;
(3)
coverage of a minimum stay for maternity as required by
Insurance Code Article 21.53F;
(4)
coverage of reconstructive surgery incident to mastectomy
as required by Insurance Code Article 21.53I;
(5)
coverage of acquired brain injury treatment/services as
required by Insurance Code Article 21.53Q;
(6)
treatment by a non-primary care specialist as a primary
care provider as required by Insurance Code Article 20A.09(a)(3)(D);
(7)
coverage of rehabilitation therapies as required by Insurance
Code Article 20A.09(a)(4);
(8)
limitations or restrictions on copayments imposed by §11.506(2)(A)
of this title (relating to Mandatory Contractual Provisions: Group, Individual
and Conversion Agreement and Group Certificate);
(9)
limitations or restrictions on deductibles imposed by §11.506(2)(B)
of this title;
(10)
the offer of in vitro fertilization coverage as required
by Insurance Code Article 3.51-6, §3A;
(11)
coverage of HIV, AIDS, or HIV-related illnesses as required
by Insurance Code Article 3.51-6, §3C;
(12)
coverage of chemical dependency and stays in a chemical
dependency treatment facility as required by Insurance Code Article 3.51-9;
(13)
coverage of serious mental illness as required by Insurance
Code Article 3.51-14;
(14)
the offer of mental or emotional illness coverage as required
by Insurance Code Article 3.70-2(F);
(15)
coverage of inpatient mental health and stays in a psychiatric
day treatment facility as required by Insurance Code Article 3.70-2(F);
(16)
the offer of speech and hearing coverage as required by
Insurance Code Article 3.70-2(G);
(17)
coverage of stays in a crisis stabilization unit and/or
residential treatment center for children and adolescents as required by Insurance
Code Article 3.72;
(18)
coverage of a minimum stay for mastectomy treatment/services
as required by Insurance Code Article 21.52G;
(19)
continuation of coverage of certain drugs under a drug
formulary as required by Insurance Code Article 21.52J;
(20)
coverage of diagnosis and treatment affecting temporomandibular
joint and treatment for a person unable to undergo dental treatment in an
office setting or under local anesthesia as required by Insurance Code Article
21.53A;
(21)
coverage of bone mass measurement for osteoporosis as
required by Insurance Code Article 21.53C;
(22)
coverage of diabetes care as required by Insurance Code
Article 21.53D;
(23)
coverage of telehealth and telemedicine as required by
Insurance Code Article 21.53F;
(24)
coverage of off-label drugs as required by Insurance Code
Article 21.53M;
(25)
offer of coverage for therapies for children with developmental
delays as required by Insurance Code Article 21.53F;
(26)
entitlement to care under Article 21.52B relating to pharmaceutical
services; and
(27)
the requirements of Article 21.52D regarding the use of
optometrists and ophthalmologists by managed care plans, that exceed the entitlement
to select a practitioner under Article 21.52 and Article 3.70-2.
§21.3517.State-mandated Health Benefits in Small Employer HMO Plans.
The following enumerated items are state-mandated health benefits that
an HMO does not have to include in a small employer group HMO consumer choice
health benefit plan:
(1)
coverage of contraceptive drugs and devices as required
by Insurance Code Article 21.52L and §21.404(3) of this title (relating
to Underwriting);
(2)
coverage of childhood immunizations as required by Insurance
Code Article 20A.09F;
(3)
coverage of a minimum stay for maternity as required by
Insurance Code Article 21.53F;
(4)
coverage of reconstructive surgery incident to mastectomy
as required by Insurance Code Article 21.53I;
(5)
coverage of acquired brain injury treatment/services as
required by Insurance Code Article 21.53Q;
(6)
treatment by a non-primary care specialist as a primary
care provider as required by Insurance Code Article 20A.09(a)(3)(D);
(7)
coverage of rehabilitation therapies as required by Insurance
Code Article 20A.09(a)(4);
(8)
limitations or restrictions on copayments imposed by §11.506(2)(A)
of this title (relating to Mandatory Contractual Provisions: Group, Individual
and Conversion Agreement and Group Certificate);
(9)
limitations or restrictions on deductibles imposed by §11.506(2)(B)
of this title;
(10)
the offer of in vitro fertilization coverage as required
by Insurance Code Article 3.51-6, §3A;
(11)
coverage of HIV, AIDS, or HIV-related illnesses as required
by Insurance Code Article 3.51-6, §3C;
(12)
coverage of chemical dependency and stays in a chemical
dependency treatment facility as required by Insurance Code Article 3.51-9;
(13)
the offer of serious mental illness coverage as required
by Insurance Code Article 3.51-14;
(14)
the offer of mental or emotional illness coverage as required
by Insurance Code Article 3.70-2(F);
(15)
coverage of inpatient mental health and stays in a psychiatric
day treatment facility as required by Insurance Code Article 3.70-2(F);
(16)
the offer of speech and hearing coverage as required by
Insurance Code Article 3.70-2(G);
(17)
coverage of stays in a crisis stabilization unit and/or
residential treatment center for children and adolescents as required by Insurance
Code Article 3.72;
(18)
coverage of bone mass measurement for osteoporosis as
required by Insurance Code Article 21.53C;
(19)
entitlement to care under Article 21.52B relating to pharmaceutical
services; and
(20)
the requirements of Article 21.52D regarding the use of
optometrists and ophthalmologists by managed care plans, that exceed the entitlement
to select a practitioner under Article 21.52 and Article 3.70-2.
§21.3518.State-mandated Health Benefits in Large Employer HMO Plans.
The following enumerated items are state-mandated health benefits that
an HMO does not have to include in a large employer group HMO consumer choice
health benefit plan:
(1)
coverage of contraceptive drugs and devices as required
by Insurance Code Article 21.52L and §21.404(3) of this title (relating
to Underwriting);
(2)
coverage of childhood immunizations as required by Insurance
Code Article 20A.09F;
(3)
coverage of a minimum stay for maternity as required by
Insurance Code Article 21.53F;
(4)
coverage of reconstructive surgery incident to mastectomy
as required by Insurance Code Article 21.53I;
(5)
coverage of acquired brain injury treatment/services as
required by Insurance Code Article 21.53Q;
(6)
treatment by a non-primary care specialist as a primary
care provider as required by Insurance Code Article 20A.09(a)(3)(D);
(7)
coverage of rehabilitation therapies as required by Insurance
Code Article 20A.09(a)(4);
(8)
limitations or restrictions on copayments imposed by §11.506(2)(A)
of this title (relating to Mandatory Contractual Provisions: Group, Individual
and Conversion Agreement and Group Certificate);
(9)
limitations or restrictions on deductibles imposed by §11.506(2)(B)
of this title;
(10)
the offer of in vitro fertilization coverage as required
by Insurance Code Article 3.51-6, §3A;
(11)
coverage of HIV, AIDS, or HIV-related illnesses as required
by Insurance Code Article 3.51-6, §3C;
(12)
coverage of chemical dependency and stays in a chemical
dependency treatment facility as required by Insurance Code Article 3.51-9;
(13)
the offer of mental or emotional illness coverage as required
by Insurance Code Article 3.70-2(F);
(14)
coverage of inpatient mental health and stays in a psychiatric
day treatment facility as required by Insurance Code Article 3.70-2(F);
(15)
the offer of speech and hearing coverage as required by
Insurance Code Article 3.70-2(G);
(16)
coverage of stays in a crisis stabilization unit and/or
residential treatment center for children and adolescents as required by Insurance
Code Article 3.72;
(17)
coverage of a minimum stay for mastectomy treatment/services
as required by Insurance Code Article 21.52G;
(18)
continuation of coverage of certain drugs under a drug
formulary as required by Insurance Code Article 21.52J;
(19)
coverage of diagnosis and treatment affecting temporomandibular
joint and treatment for a person unable to undergo dental treatment in an
office setting or under local anesthesia as required by Insurance Code Article
21.53A;
(20)
coverage of bone mass measurement for osteoporosis as
required by Insurance Code Article 21.53C;
(21)
coverage of diabetes care as required by Insurance Code
Article 21.53D;
(22)
coverage of telehealth and telemedicine as required by
Insurance Code Article 21.53F;
(23)
coverage of off-label drugs as required by Insurance Code
Article 21.53M;
(24)
offer of coverage for therapies for children with developmental
delays as required by Insurance Code Article 21.53F;
(25)
entitlement to care under Article 21.52B relating to pharmaceutical
services; and
(26)
the requirements of Article 21.52D regarding the use of
optometrists and ophthalmologists by managed care plans, that exceed the entitlement
to select a practitioner under Article 21.52 and Article 3.70-2.
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 May 13, 2004.
TRD-200403233
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Effective date: June 2, 2004
Proposal publication date: January 9, 2004
For further information, please call: (512) 463-6327
28 TAC §§21.3525 - 21.3530, 21.3535
The new sections are adopted under the Insurance Code Articles
3.80, §7, 20A.09N(j), and §36.001. Articles 3.80, §7 and 20A.09N(j)
require the commissioner to adopt rules as necessary to implement the statutes
creating consumer choice health benefit plans. Section 36.001 provides that
the commissioner 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.
§21.3530.Health Carrier Disclosure.
(a)
A health carrier offering or providing a consumer choice
health benefit plan must provide each prospective or current policyholder
or contract holder with a written disclosure statement in the manner prescribed
in Form CCP 1 provided by the department for that purpose. Form CCP 1:
(1)
acknowledges that the consumer choice health benefit plan
being offered or purchased does not provide some or all state-mandated health
benefits;
(2)
lists those state-mandated health benefits not included
under the consumer choice health benefit plan;
(3)
provides a notice that purchase of the plan may limit future
coverage options in the event the policyholder's, contract holder's, or certificate
holder's health changes and needed benefits are not covered under the consumer
choice health benefit plan;
(4)
requires the prospective or current policyholder or contract
holder to sign an acknowledgment that he received the written disclosure statement,
and
(5)
informs the prospective or current policyholder or contract
holder that he has the right to a copy of the written disclosure statement
free of charge.
(b)
A health carrier may obtain Form CCP 1 by making a request
to the Life and Health/Filings and Operations Division, Mail Code 106-1E,
Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104 or
333 Guadalupe, Austin, Texas 78701, or by accessing the department website
at www.tdi.state.tx.us.
(c)
A health carrier must tender the disclosure described in
subsection (a) of this section:
(1)
to a prospective policyholder or contract holder, not later
than with the offer of a consumer choice health benefit plan; and
(2)
to an existing policyholder or contract holder, along with
any offer to renew the contract or policy.
(d)
Where a health carrier tenders the disclosure statement
referenced in subsection (a) of this section to a prospective policyholder
or contract holder:
(1)
through an agent, the agent may not transmit the application
to the health carrier for consideration until the agent has secured the signed
disclosure statement from the applicant.
(2)
directly to the applicant, the health carrier may not process
the application until the health carrier has secured the signed disclosure
statement from the applicant.
(e)
The health carrier must, upon request, provide the prospective
policyholder or contract holder with a copy of the written disclosure statement.
(f)
Where a health carrier is offering or issuing a consumer
choice health benefit plan to an association, the health carrier must satisfy
the requirements of subsection (c) of this section by tendering the disclosure
to prospective or existing certificate holders.
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 May 13, 2004.
TRD-200403234
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Effective date: June 2, 2004
Proposal publication date: January 9, 2004
For further information, please call: (512) 463-6327
Subchapter F. EVIDENCE OF COVERAGE
Chapter 21.
TRADE PRACTICES
2.
STATE-MANDATED HEALTH BENEFITS
3.
REQUIRED NOTICES
4.
ADDITIONAL REQUIREMENTS