28 TAC §§21.3301 - 21.3305
The Commissioner of Insurance adopts new Subchapter Y, §§21.3301-21.3305,
concerning discrimination in compensation to physicians and providers of women's
health care services. The new sections are adopted with changes to the proposed
text as published in the February 22, 2002, issue of the
Texas Register
(27 TexReg 1261).
These new sections provide definitions and procedures necessary to implement
Senate Bill (SB) 8, enacted by the 77th Legislature, which added Texas Insurance
Code Article 21.53N. SB 8 was enacted to ensure that physicians and providers
of women's reproductive health or reproductive oncology services receive compensation
from plan issuers that is not less than that received by physicians and providers
who provide health care services exclusively to men or to the general population.
In accordance with SB 8, the department has determined that there are no rules
in the Texas Administrative Code contrary to the provisions of SB 8. Consequently,
the department did not propose repeal of any rules.
The adopted rules specify that covered services for reproductive health
or reproductive oncology services for women must be reimbursed at an amount
not less than the annual average compensation per hour or unit as would be
paid by the same issuer for the same or comparable services provided exclusively
to men or to the general population. The department has outlined in the rule
the type of information and documentation that must accompany a complaint
alleging a violation of Article 21.53N or new §§21.3301-21.3305.
The department recognizes that reimbursements to physicians and providers
may vary depending on factors that do not involve unfair discrimination. The
adopted rules provide the minimum information and documentation the department
must receive in order to investigate an allegation of unfair discrimination
in reimbursements pursuant to SB 8.
New §21.3301 provides that the purpose of the new subchapter is to
remedy unequal reimbursements to physicians and providers of women's reproductive
health or reproductive oncology services. New §21.3302 sets out definitions
of terms used in the subchapter. New §21.3303 describes the types of
issuers and health benefit plans to which the new sections apply and clarifies
when they apply. New §21.3304 clarifies that issuers must reimburse physicians
and providers for covered reproductive health or reproductive oncology services
at an amount not less than the amounts paid to physicians and providers who
provide the same or similar covered services exclusively to men or to the
general population. In addition, the section provides that relative value
units (RVUs) will be considered, and that other reimbursement methodologies
submitted by the physician or provider may be considered, in determining whether
an issuer is providing appropriate reimbursement. New §21.3305 describes
the types of information and documentation that must be submitted to the department
to file a complaint against an issuer for an alleged violation of Article
21.53N §3. The section also clarifies when a complaint will be considered
"filed" for purposes of the rule, the actions the department must take within
10 days of the filing of a complaint, and when the 120-day time period set
forth in Article 21.53N §4(c) commences. In addition, the section describes
actions that the department will take upon receipt of a complaint containing
incomplete information and actions that will be taken if the department believes
a violation of Article 21.53N has occurred. The department has received public
comments on the proposed new sections and has made changes based upon the
comments and for clarification.
General: A commenter states that some health plans contract for maternity
services at a global rate and thus would be unable to determine an equivalent
service. The commenter asks how the department will evaluate a global maternity
rate and whether the department will clarify this issue in the rules.
Agency Response: The department does not believe that it is necessary for
the rule to identify services that may be equivalent to maternity services
that are subject to a global rate or to provide clarification or specific
detail about how it would evaluate such a complaint if one were received.
It is the department's understanding that use of a "global rate" for maternity
services -- as opposed to use of a rate for each individual service provided
to an enrollee -- is negotiated between the physician or provider and the
plan issuer. If a physician or provider believes that the global rate is discriminatory
under the statute and the rule, the burden is on the physician or provider
to establish in its complaint how and why the global rate is discriminatory.
The department's evaluation of this and any other complaint will be made in
accordance with the information submitted by the physician or provider in
support of the complaint.
Cost Note: A commenter states that the Texas Health & Human Services
Commission (HHSC) has determined that the rule applies to HMOs participating
in Medicaid and the Children's Health Insurance Program HMOs. The commenter
believes that there could be significant fiscal impact on HHSC if participating
HMOs are required to pay rates for reproductive services that exceed existing
Medicaid fee schedules because the state would have to raise capitation rates
to the HMOs to compensate the plans for the coverage. The commenter believes
that the department should have included this potential impact as a cost to
state or local government that is created by the rule.
Agency Response: The department disagrees that the rule, as opposed to
the statute, creates any potential costs to HHSC. The department has reviewed
the communication from HHSC on which the commenter relied in making this comment.
The required actions are identified as follows: "Policies will be developed
and guidance provided to the Medicaid and CHIP HMOs regarding compliance with
SB 8. I would imagine contract amendments will be required, as well." Any
costs attributed to these actions would be for compliance with SB 8, as opposed
to any requirement added by this rule. Similarly, any costs for increased
reimbursement would be attributable to SB 8 itself rather than the rule. Finally,
the department notes that neither HHSC nor any other state agency has submitted
comments regarding the cost of or any other issue relating to this rule.
General, §§21.3301 & 21.3304: A commenter recommends adding
a section to describe the department's procedures in evaluating compliance
with the statute and the rule, and questions whether the department will utilize
the expertise of an independent review organization or some other independent
medical and actuarial resource. The commenter believes that it is unclear
how the department can enforce this rule and asks whether the department will
specify appropriate clinical or other criteria to be used in determining violations
and whether the department will ensure that consistent criteria are used for
all companies.
Agency Response: The department does not believe such an additional section
is necessary nor does it believe that specific clinical or other criteria
need be specified in the rule to ensure that consistent criteria are applied
in every complaint. As is the case with any complaint alleging a violation
of the Texas Insurance Code or its rules, the department will evaluate each
individual complaint and perform any necessary investigation to determine
if a violation of the Texas Insurance Code (in this case, Article, 21.53N)
has occurred. Both SB 8 and this rule require any physician or provider filing
a complaint to set forth the basis for its belief that the reimbursement in
question is discriminatory when compared to other specific reimbursement.
The information required to evaluate and resolve a complaint filed under this
rule will depend on the specific facts alleged in the complaint. If department
staff is unable to evaluate an individual complaint, the department has the
discretion, as it does in any investigation, to contract with medical, actuarial
or other experts to advise the department as necessary on a case by case basis.
§21.3304(a): A commenter quotes the statute to require reimbursement
"for reproductive health and oncology services provided to women an amount
not less than the annual compensation per hour or unit as would be paid in
the service area . . . for the same resources, as applicable, that would be
used in providing health services exclusively to men or the general population."
The commenter believes that the department lacks statutory authority to add
the phrase "or comparable" because it changes the meaning of the statute.
Agency Response: The department disagrees that the use of the word "comparable"
constitutes an unauthorized expansion of the scope of SB 8. The comment misquotes
the statute. SB 8, at §3, requires health benefit plans to reimburse
for reproductive health and oncology services provided to women in "an amount
not less than the annual compensation per hour or unit as would be paid in
the service area to a physician or provider for the same medical, surgical,
hospital, pharmaceutical, nursing, or other similar resources, as applicable,
that would be used in providing health services exclusively to men or the
general population." (Emphasis added.) In the rule, the word "comparable"
was used as synonym for the word "similar" as used in §3, above. In addition,
SB 8, §2, specifically refers to "comparable male-specific procedures,"
further demonstrating legislative intent that comparable procedures be evaluated.
However, for purposes of consistency, the department has changed the word
"comparable" to "similar" in this section of the adopted rule to maintain
exactly the same wording used in §3 of the statute.
§21.2304(b): A commenter thinks the meaning of "in addition to other
submitted reimbursement methodologies" is unclear and asks whether this phrase
refers to RVUs and, if not, what other methods would be considered.
Agency Response: The phrase "other submitted reimbursement methodologies"
was included to give the physician or provider the opportunity to introduce
whatever information the physician or provider believes would support the
allegation that the reimbursement is discriminatory. For greater clarification,
the department has changed this language to read "in addition to any other
reimbursement methodologies submitted by the physician or provider included
as part of the complaint documentation described in subparagraph (a)(6) of §21.3305
of this subchapter (relating to Complaints), for comparing reimbursements
of the same or comparable covered services offered exclusively to men or to
the general population."
§21.3305: A commenter asks what the term "provider" means in the phrase
"documentation from the physician or provider."
Agency Response: As used in the phrase cited in the comment, the term "provider"
refers to a provider, as defined in the statute and §21.3302(3) of the
rule, that brings a complaint pursuant to the rule.
For with changes: The Texas Association of Health Plans.
The new sections are adopted under the Texas Insurance Code Article
21.53N and §36.001. New Article 21.53N, enacted pursuant to Senate Bill
8, authorizes the commissioner to adopt rules to implement the statute. Section
36.001 provides that the Commissioner of Insurance may adopt rules to execute
the duties and functions of the Texas Department of Insurance only as authorized
by statute.
§21.3301.Purpose.
The purpose of this subchapter is to remedy unequal reimbursements
to physicians and providers by requiring issuers to pay physicians and providers
of women's health care services the same or similar amounts for covered reproductive
health or reproductive oncology services as are paid to physicians and providers
who provide covered services exclusively to men or to the general population.
§21.3302.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise:
(1)
Issuer--Those entities that offer a health benefit plan
as identified in Insurance Code Article 21.53N §2(1-8).
(2)
Physician--A person licensed by the Texas State Board of
Medical Examiners to practice medicine and surgery in this state.
(3)
Provider--A hospital, nurse practitioner, registered nurse,
physician assistant, home health aide, nurse midwife, surgery center, or other
outpatient care center.
§21.3303.Applicability.
This subchapter applies to issuers that provide coverage for reproductive
health or reproductive oncology services for women and applies to health benefit
plans as described in Insurance Code Article 21.53N §2 that are delivered,
issued for delivery, or renewed on or after January 1, 2002.
§21.3304.Reimbursements.
(a)
An issuer that covers reproductive health or reproductive
oncology services provided for women must reimburse physicians or providers
for those services at an amount not less than the annual average compensation
per hour or unit as would be paid in the service area for the same or similar
covered medical, surgical, hospital, pharmaceutical, nursing or other services,
as applicable, provided exclusively to men or to the general population.
(b)
In determining appropriate reimbursement for reproductive
health or reproductive oncology services, the relative value units (RVUs)
published by the Centers for Medicare & Medicaid Services (CMS) shall
be considered, in addition to any other reimbursement methodologies submitted
by the physician or provider included as part of the complaint documentation
described in subparagraph (a)(6) of §21.3305 of this subchapter (relating
to Complaints), for comparing reimbursements of the same or comparable covered
services offered exclusively to men or to the general population.
§21.3305.Complaints.
(a)
A complaint against an issuer filed with the Texas Department
of Insurance for alleged violations of Insurance Code Article 21.53N §3
shall include:
(1)
a description of the alleged violation under Article 21.53N;
(2)
the complainant's name, address, telephone number and fax
number;
(3)
the physician's or provider's name, if different than the
complainant;
(4)
the name of the issuer;
(5)
a statement indicating the complaint applies to a health
benefit plan as set forth in §21.3303 of this subchapter (relating to
Applicability); and
(6)
documentation from the physician or provider that:
(A)
identifies the amount reimbursed by the issuer for a covered
reproductive health or reproductive oncology service provided to a woman;
(B)
identifies the amount of time and resources spent in providing
the covered reproductive health or reproductive oncology service;
(C)
using objective criteria, identifies the same or comparable
covered service provided exclusively to men or to the general population offered
by the issuer;
(D)
identifies the difference, if any, in the amount of time
and resources spent in providing the covered reproductive health or reproductive
oncology service and the same or comparable covered service using objective
criteria;
(E)
identifies the level of expertise needed to provide the
covered reproductive health or reproductive oncology service and the same
or comparable covered service; and
(F)
compares the difference in reimbursements for the covered
reproductive health or reproductive oncology service and the same or comparable
service from the issuer within the same geographic service area as the physician
or the provider performing the service.
(b)
Within 10 days of receipt of a complaint, the department
will determine if all the information in subsection (a) of this section has
been received.
(c)
If all the information identified in subsection (a) of
this section is included in the complaint:
(1)
the complaint will be considered filed on the date of receipt;
(2)
the complainant will be notified in writing and the issuer
will be contacted for a response; and
(3)
the 120-day time period in Article 21.53N §4(c) will
commence.
(d)
If all the information identified in subsection (a) of
this section is not included with the complaint, the complaint will be returned
to the complainant with a letter explaining the deficiencies.
(e)
If the department believes that the information received
by the department under subsection (a) of this section substantiates the alleged
unfair discrimination in compensation as contemplated in Article 21.53N of
the Insurance Code and this subchapter, action will be taken in accordance
with Article 21.53N §4 of the Insurance Code.
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 6, 2002.
TRD-200202792
Gene Jarmon
Assistant General Counsel
Texas Department of Insurance
Effective date: May 26, 2002
Proposal publication date: February 22, 2002
For further information, please call: (512) 463-6327