TITLE 28.INSURANCE

Part 1. TEXAS DEPARTMENT OF INSURANCE

Chapter 3. LIFE, ACCIDENT AND HEALTH INSURANCE AND ANNUITIES

Subchapter X. PREFERRED PROVIDER PLANS

28 TAC §3.3703

The Commissioner of Insurance adopts amendments to §3.3703, concerning required contracting provisions for preferred provider plans. The amendments are adopted with changes to the proposed text as published in the June 14, 2002, issue of the Texas Register (27 TexReg 5059).

The amendments address the disclosure of certain information concerning fee schedules and coding procedures that affect the payment for services provided by physicians and other health care providers pursuant to a preferred provider contract with an insurer that is subject to Texas Insurance Code Art. 3.70-3C. The amendments implement Art. 3.70-3C, Sec. 3A(i), which states that insurers shall provide preferred providers with copies of all applicable claim processing policies or procedures. The amendments clarify that an insurer must disclose information concerning fees and coding that affects the payment to be made to a preferred provider for services that the preferred provider has contracted to provide on behalf of an insurer. Lack of contractual access to this information may have prevented some preferred providers from ascertaining whether they had been compensated according to the terms of their contracts with insurers. The adopted amendments are designed to address this situation.

The department's proposed rule contained two alternatives, each intended independently to accomplish the stated purpose. Alternative one was contained at §11.901(10) and alternative two was contained at §11.901(11) of the proposed rule. After receiving comments, the department has decided to adopt the first alternative, with changes from the proposed version. In response to comments and for clarification, the department has changed §3.3703(a)(11), (a)(20), (a)(20)(A), (a)(20)(A)(i)(I) and (II), (ii), (iv), (vii), (B), (B)(i) - (iii), (D), (F), (G)(i) and (ii). None of the changes introduce a new subject matter or affect additional persons other than those subject to the proposed rule as originally published.

The amendments to §3.3703(a)(11) require that a contract between a preferred provider and a carrier contain terms regarding compliance with all applicable prompt pay statutes and regulations. The adopted alternative, new paragraph (20) to §3.3703(a), requires that upon request from a preferred provider, a carrier must provide preferred provider-specific information in a level of detail so that a reasonable person with sufficient training, experience and competence in claims processing (skilled reasonable person) can determine the payment to be made according to the terms of the contract. The request may be provided by any reasonable and verifiable means, such as e-mail or facsimile. The information the carrier must provide must include a preferred provider-specific summary and explanation of all methodologies that will be used to pay claims submitted in accordance with the contract, including a fee schedule, any applicable coding methodologies, bundling processes, downcoding policies, and any other applicable policy or procedure used by the insurer in paying claims for covered services under the contract. The information provided includes preferred provider-specific fee schedules that pertain to the range of health care services reasonably expected to be provided under the contract by that preferred provider. Additionally, the insurer must provide any addendum, schedule, exhibit or policy necessary to provide a reasonable understanding of the information that is being disclosed to the preferred provider. For example, a fee schedule that indicates that the insurer will reimburse certain claims at a usual and customary rate must explain how the insurer will determine the usual and customary rate for a particular service. An insurer may provide any required information using any reasonable method that is accessible by the preferred provider, including e-mail, computer disks, paper or access to an electronic database. If information is held by an outside source and is not within the control of the insurer, such as state Medicaid or federal Medicare fee schedules, the insurer must explain the procedure by which the preferred provider may access the outside source. An insurer that cannot provide the information required by §3.3703(a)(20) due to copyright laws or a licensing agreement may supply a summary of the required information. However, the summary must be sufficient to allow the preferred provider to determine the payment to be made under the contract. Any claims payment information required to be provided pursuant to this paragraph may be amended, revised or substituted only upon written notice to the preferred provider at least 60 calendar days prior to the effective date of the amendment, revision or substitution. The requirements added by paragraph (20) apply to all insurers as of the effective date of these amendments. Upon receipt of a request, the insurer must provide the information by the later of the 90th day after the effective date of the rule or the 30th day after the insurer receives the request. However, for contracts entered into or renewed on or after the effective date of these amendments, the insurer must provide the required information upon request contemporaneously with other contractual materials. Some carriers commented that they already have procedures established and are currently providing this information to their preferred providers. The department acknowledges that fact and expects that the rule's establishment of a timeframe for carriers that have not yet implemented such procedures will not interrupt this practice.

A preferred provider receiving information pursuant to paragraph (20) may not use or disclose the information for any purpose other than practice management or billing activities. A preferred provider may not use the information to misrepresent the level of services actually performed when submitting a claim under the contract. Information provided pursuant to these amendments about a particular service does not constitute a verification that the service a preferred provider has provided or proposes to provide is a covered benefit for a particular insured. Paragraph (20) is not intended to dictate the types of practices, policies or procedures that relate to or affect the claims payment process an insurer may elect to employ. In addition, other plan requirements, including deductibles, co-payments, co-insurance, or annual, lifetime or benefit maximums may also affect the actual amount of reimbursement.

Where applicable, the department has indicated comments received on the comparable Chapter 11 rule, §11.901, published elsewhere in this issue of the Texas Register , by enclosing the reference in brackets.

General

Comment: Some commenters support the proposed rule's first alternative requiring the contract to contain the fee schedule or clear reference to any other appropriate documents. The commenters appreciate the detail and extent to which TDI recognizes that physicians and providers need to be able to completely understand how they will be reimbursed. These commenters do not support alternative two because they believe that the information should not have to be requested since price is an essential element of the contract. Another commenter notes that alternative two leaves some disclosures open for negotiation, but contends that most physicians cannot successfully negotiate the inclusion of these terms because managed care companies will not accept changes to their contracts. A commenter suggests that, if alternative two is adopted, it should contain all of the detail from alternative one (along with the commenter's suggested modifications to same). A commenter suggests that TDI adopt a "hybrid" of alternatives one and two that requires the disclosure of the information, upon request, to minimize unnecessary expenditures and provide access to appropriate information.

Agency Response: The department appreciates the commenters' input on the alternatives. The department recognizes that there are questions concerning the sufficiency of the information that carriers are currently providing to preferred providers. As previously noted, the commissioner has adopted alternative one with changes as a reasonable compromise which preserves the rule's intent yet addresses the commenters' concerns.

Comment: A commenter recommends that, consistent with HB 610, the selected alternative be modified to require carriers to disclose their utilization review policies.

Agency Response: The department believes that the requirements of Art. 3.70-3C, §3A make the addition of the suggested language unnecessary. The department will continue to monitor this issue to determine if future rulemaking is warranted.

Comment: Some commenters request that the department specifically exclude workers' compensation carrier networks (WCCN) from the rule. The commenters point out that Texas Labor Code §§408.0221 and 408.0223 adopt Art. 3.70-3C by reference as a minimum standard. The commenters want to avoid confusion, and also believe that it would be difficult for workers' compensation carriers to comply with the rule due to the use of third-party vendors to handle medical claims. A commenter is concerned that the notice of proposed rulemaking focused more on getting comments from health insurers than from workers' compensation insurers, and if workers' compensation insurance is not excluded recommends that the rule be republished so the workers' compensation industry has an opportunity to comment.

Agency Response: The department disagrees and declines to make this change. While the Labor Code adopts Art. 3.70-3C as a minimum standard for WCCNs, it does so only to the extent they are consistent with the subtitle. Labor Code §§408.0222(g) and 408.0223(d). Initially, the department notes that the statutory requirement takes precedence over any action it may take with regard to this rule. Moveover, the Texas Workers' Compensation Commission (TWCC), not TDI, is the relevant agency adopting standards for WCCNs and thus determining whether Art. 3.70-3C standards apply to WCCNs. TWCC, on behalf of the Healthcare Network Advisory Committee (HNAC), is responsible for developing the contract between carriers and health care providers in WCCNs, and the contract will control payment of the providers (Labor Code §408.0222(o)). In addition, Labor Code §413.011 (Reimbursement Policies And Guidelines; Treatment Guidelines) requires the TWCC to establish health care provider fee schedules, "including applicable payment policies relating to coding, billing, and reporting...." Commenters should thus address to TWCC or the HNAC any concerns regarding the applicability to WCCNs of standards adopted in this rule or enacted in Art. 3.70-3C.

Any overlap between the Insurance Code and the Labor Code means that each standard under Art. 3.70-3C will require analysis to determine its consistency with analogous Labor Code provisions. As contemplated in Labor Code §408.0221(f), the department will continue to work, as necessary, with HNAC, TWCC, and other appropriate agencies in the implementation of WCCNs, including analysis of the effect of Art. 3.70-3C and this rule on the networks.

The department provided the same general public notice upon publication of this rule proposal as it does for any other rule proposal. The prior notice was sufficient to apprise all interested persons of the possibility the rule could have an effect on workers' compensation insurance and allow them to comment. The department declines to republish the rule.

Costs: Some commenters contend that alternative one places an unnecessary and costly burden on carriers to provide information that would have little distinguishable benefit to physicians and providers. These commenters believe that the proposed rule's cost estimates have been underestimated and that the rule will have a detrimental impact on insurers, driving up the cost of health care premiums and adversely affecting the prompt payment of clean claims. Another commenter contends that the costs of complying with alternative one are at least double the costs of complying with alternative two, due to the requirement that the carriers mail hundreds of thousands of codes to thousands of physicians. Some commenters note that this mass mailing will result in some physicians and providers receiving inapplicable codes and other information, as well as burdensome documentation. A commenter contends that tailoring the package to individual providers would have a high price tag as well. The commenter claims that the anticipated cost burden from alternative one would include substantial overhaul of health plan contracts, provision of massive amounts of potentially irrelevant information to providers, review of information to assure compliance with the reasonable claims reviewer standard, revision of existing contracts within the 90-day timeframe, and provision of the 60-day notice of changes to the fee and claims review information. A commenter is concerned that alternative one is too prescriptive, and will increase administrative costs and interfere with updating and improvement of the claims payment system. Other commenters believe that the proposal will give providers a competitive advantage in health plan negotiations, and will make information widely available that will gradually erode provider discounts.

Some commenters note that this provision presupposes that a physician or provider is having claims payment issues with all the carriers with which it contracts, which has not been the commenters' experience. The commenters believe it would be punitive to require all carriers to provide the amount of information set forth in the rule when some preferred providers are satisfied with their relationship with some carriers.

The commenters contend that alternative two will be less costly and burdensome to administer because it requires the disclosure of the information at the request of the provider. The commenters believe this will enable the carriers to provide information more tailored to the physician's or provider's practice area.

Agency Response: The department appreciates the commenters' concerns regarding the cost and difficulty of implementation. The department does not intend the rule to place an undue burden on carriers or to inundate preferred providers with unnecessary information. Rather, it is the department's intent that preferred providers receive sufficient information so that a skilled reasonable person can determine the payment to be made in accordance with the contract. The department believes that the rule as adopted - which allows the information to be distributed electronically or by other means and upon request - is a reasonable compromise which preserves the rule's intent yet addresses the commenters' concerns. Regarding any potentially burdensome overhaul of contracts, the department has modified alternative one so that the required information itself is not set out at length in the contract. The department understands that implementation of the statute will likely result in preferred providers receiving more information during the contracting process than they currently do; however, the statute requires full disclosure of a carrier's claims payment policies and procedures. The department also believes that some of the comments were based on the incorrect assumption that carriers must provide a comprehensive set of claims processing materials to every contracting provider rather than provider- or specialty-specific materials, as the rule states.

Internet Availability of Information: Some commenters suggest that carriers be permitted to comply with the requirement through an administrative guide, electronic- based communication, or upon written request from the preferred provider. The commenters also suggest that the carrier have the option to provide the information in the most cost effective manner. A few commenters suggest allowing the information to be accessed through the Internet by preferred providers utilizing a protected password. The commenters believe that this will reduce costs for the carrier and allow a certain level of security for what is considered proprietary information. Another commenter questions the efficacy of web security to protect confidential information.

A commenter agrees that it is reasonable to require agreed fee schedules to be included in the contracts. However, because there are many different adjudication methodologies in use, their wide-ranging variety and complexity make it unwieldy to include that information in a contract.

Agency Response: The department agrees with many of these comments and has modified alternative one to allow the information to be distributed upon request and by electronic or other means. The department acknowledges the concerns about web security, but notes that carriers have access to a variety of security measures to protect web-based information. Moreover, the rule allows carriers to provide information in any reasonable format, not just via the web.

§3.3703(a)(20), (B)(iv) & (D) [§11.901(10)(B)(iv) & (D)]: A commenter requests clarification that the proposal does not require existing contracts with providers to be rewritten. Another commenter recommends deletion of these clauses as burdensome and expensive because they would require a contract amendment every time an internal manual, memo or document is updated. A commenter objects to subparagraph (D) as being too broad, having a significant cost impact, and impeding quality improvement in claims processing systems. A commenter does not believe that the contract should be the main source for reimbursement policy information. The commenter explains that most of its contracts are evergreen, subject to termination notification requirements by either party. The commenter recommends that carriers be permitted the flexibility to adapt, improve and update their administrative processes without requiring amendment of contracts to accommodate internal changes. Some commenters believe that the rule should not pertain to routine process changes but should require notice to preferred providers of updates to schedules and claims payment software.

Agency Response: The department agrees and has modified alternative one so that the required information itself is not set out at length in the contract. Thus, an existing contract does not need to be rewritten but the required information must be provided to the preferred provider upon request. However, all new or renewed contracts must include the requirements of paragraph (20). The department believes making such materials available electronically will minimize the cost of informing preferred providers of changes. The department notes that the basic requirement of the rule is to ensure that preferred providers have sufficient information to determine the payment to be made in accordance with the contract, and this criterion should be used to determine when the 60-day notice is required.

§3.3703(a)(20) [§11.901(10)]: A commenter asserts that providing the voluminous information required by the proposal will slow down the negotiation of contracts, both during the 90-day compliance period and also at renewal time each year. This could cause a serious disruption in services.

Agency Response: The department understands that implementation of the statute will likely result in preferred providers receiving more information during the contracting process than they currently do. However, the statute requires full disclosure of a carrier's claims payment policies and procedures. The department believes that the rule as adopted - which allows the information to be distributed electronically and upon request - is a reasonable compromise which preserves the statute's intent yet addresses the commenters' concerns. A request may be provided by any reasonable and verifiable means, such as facsimile or e-mail. The department expects that parties will negotiate in good faith and on a schedule designed to avoid a disruption of services.

Comment: A commenter notes that the proposal makes more sense for medical professionals than for facilities, as it believes that the American Medical Association (AMA) has a longer and better track record for standardizing treatment codes than does the American Hospital Association (AHA). The commenter advises that listing adjudication methodologies will not benefit facilities that insist upon contracts with a percent discount, as opposed to a per diem, case rate, or DRG basis.

Agency Response: The department appreciates the commenter's concern that some aspects of the rule may affect some preferred providers differently than others. The purpose of the rule, however, is simply to assure the delivery of sufficient information for a skilled reasonable person to make a determination of the payment to be made under a contract, regardless of the particular fee schedule or billing practice.

§3.3703(a)(20) [§11.901(11)]: Some commenters support alternative two with changes. The commenters recommend a more balanced approach to disclosure that would also require preferred providers to disclose to carriers a list of their billed charges for treatment and services. The commenters believe that a dual disclosure process is necessary to maintain a balanced negotiation process that is not unduly weighted in favor of one party. The commenters also believe that this approach will be beneficial to consumers.

Agency Response: The department recognizes this concern, but notes that the department has limited authority over preferred providers and suggests that carriers address this issue in their contract negotiations.

§3.3703(a)(20)(B) & (C) [§11.901(10)(B) & (C)]: A commenter recommends adding references to utilization review (UR) criteria because these criteria are used to determine both medical necessity and the level of reimbursement to be paid.

Agency Response: The department declines to make this change as Art. 3.70-3C, §3A requires only the disclosure of UR policies. However, Insurance Code Art. 21.58A stipulates that providers are entitled to the UR determination of medical necessity for proposed services and sets forth the time table for notifying the provider of the decision. It further states that the notice of the UR decision must include a description or the source of the screening criteria upon which that decision is based.

§3.3703(a)(20)(A) [§11.901(10)(A)]: A few commenters suggest removing the word "reasonable" before the word "person" because it is redundant in context. Some commenters recommend deleting the word "summary" because the term is inconsistent with the type of detailed information that must be provided.

Agency Response: The department disagrees that the word "reasonable" is redundant. Sufficiency of the information is gauged in part by the recipient, who must be reasonable as well as possess sufficient training, experience, and competence in claims processing. The department is using the reasonable person standard because it is a well established legal benchmark.

As to deletion of "summary," the other requirements the rule places on summaries make the term specific and meaningful as a standard for compliance. So long as a carrier ensures that its summary includes sufficient information to meet the skilled reasonable person standard, it will be in compliance. The rule allows carriers flexibility to meet this requirement by utilizing any reasonable method that is accessible by the preferred provider.

§3.3703(a)(20)(C) [§11.901(10)(C)]: A commenter suggests that the rule should require that health plan contracts require training certification for provider billing staff.

Agency Response: The department disagrees that this is necessary, although a carrier can provide training for provider billing staff if it desires. The department believes that the skilled reasonable person standard contained in the rule is sufficient to address this concern.

§3.3703(a)(20)(A)(i), (i)(II) - (iv) [§11.901(10)(A)(i), and (i)(II) - (iv)]: A commenter recommends that the provisions describing the carrier's fee schedule be expanded to include certain billing codes or code groupings and per diem and case rate payments and that the services that are excluded from the per diem or case rate amounts be identified.

Some commenters recommend the addition of references to standard coding methodologies, utilization review criteria and policies developed or used by carriers, and procedures or revenue code groupings that contribute to the determination of case rates or per diem payments. Some commenters also seek definitions for "bundling," "downcoding," "component codes," "standard coding methodology," "nonstandard coding methodology" and "recoupment," as well as the phrase "global service periods, comprehensive codes, component codes and mutually exclusive procedures."

Agency Response: The department disagrees that this is necessary, as the rule makes clear that the carrier has to provide sufficient information so that a person meeting the skilled reasonable person standard can determine the payment to be made under the contract. Although the adopted rule does specify certain methodologies and processes, this is not an exclusive list. "Including" is a term of enlargement and not of limitation or exclusive enumeration. The department has combined subclauses (i) and (ii) to delete reference to "nonstandard." The department does not believe it is necessary to define the remaining terms, as they are widely recognized by the industry.

§3.3703(a)(20)(A)(i)(I) [§11.901(10)(A)(i)(I)]: A commenter recommends inserting the words "to be" before the word "submitted" to clarify that the carrier must disclose all fees related to all possible services the physician or provider may provide. The commenter believes that, as written, this could be interpreted to mean that a carrier must provide only fees associated with codes a physician has previously submitted.

Agency Response: The department disagrees, as it believes that the provisions as written are sufficiently clear to explain that the information to be provided is not limited to only those fees associated with codes a preferred provider has previously submitted. The carrier must provide the fee schedules and applicable codes and modifiers by which all claims for covered services will be calculated. This includes all services contemplated by the contract between the carrier and the preferred provider, regardless of whether claims for any of those services have been previously submitted.

§3.3703(a)(20)(A)(i)(II) [§11.901(10)(A)(i)(II)]: Some commenters suggest replacing the words "may request" with the words "will receive" so that the carrier cannot refuse to provide the fee schedules. A few commenters also suggest adding the phrase "by law" after the word "authorized" to clarify that the law allows for the disclosure of the information as well as clarify that the reference is to any services the physician may legally provide.

Agency Response: With regard to the first comment, the department believes that the adopted rule ensures the preferred provider will receive the information upon request. The department has removed the word "authorized" from the adopted rule and has substituted the language "intends to provide."

§3.3703(a)(20)(A)(iii) [§11.901(10)(A)(iii)]: A few commenters recommend the addition of the words "anesthesia units" after "component codes." One commenter seeks to include reference to "frequency parameters" and "procedure to diagnosis edits" and provides definitions for these terms, as well as "modifier indicators." Another commenter notes that the subclause lists some but not all types of bundling processes and recommends adding a reference to and a definition of "unit frequency limitations."

Agency Response: The department does not believe that the suggested language is necessary as it has changed the rule to require the provision of all applicable bundling processes. The basic requirement of the rule is to ensure that preferred providers have sufficient information to determine the payment to be made in accordance with the contract, no matter on what basis the parties agree to determine payment.

§3.3703(a)(20)(D) & (a)(21)(B) [§11.901(10) & (11)(B)]: Some commenters indicate that circumstances beyond a carrier's control might make it impossible to comply with the 60-day notice of changes in fees and claims processes, and request an exception for coding changes that are beyond the carrier's control, such as those prescribed by the Centers for Medicare and Medicaid Services (CMS) or the AMA. The commenter notes that CMS issues retroactive coding changes or provides insufficient lead time to meet the requirement. Other commenters believe that retroactive revisions should not be allowed and that mutual agreement between the carrier and preferred provider should be required for any amendments to be effective. Another commenter requests that this provision be changed to 30 days. Another commenter asked for an explanation of how the 60-day notice period in paragraph (D) reconciles with the 90-day compliance period in paragraph (F). Another commenter states that software is developed to check billings and to be responsive to changes in billing practices encountered over time. A 60-day notice period might prevent carriers from catching up to innovative changes in billing practices, which might prove unfair to carriers and cause health care costs to rise.

Agency Response: The department acknowledges the concerns regarding the timing of changes in coding and fee schedules but disagrees that the rule should be changed. Where parties have agreed to use source information outside the control of the carrier as the basis for the carrier's fee computation, the information the rule requires carriers to provide is the identity of the source and the procedure by which the physician or provider may readily access the source. A change to either of those items, or to any factor within the carrier's direct or indirect control, would trigger the 60-day notice requirement. Any change to the source information outside the control of the carrier, however, would not be a change to the carrier's claims payment policies or procedures or to the information required by this rule, and would not require 60 days notice under Article 3.70-3C, §3A(k) and 28 TAC 3.3703(a)(20)(D). However, if the carrier mades a change to a claim processing or payment procedure (such as changing the fee payment from 120% of Medicare to 110%), that would require a 60-day notice in order to be effective. Although the rule does not require a carrier to provide notice of changes made by an outside source, the parties are free to create such a duty by contract, or to agree on effective dates different from those set by the outside source. The department will continue to monitor this practice to determine if future rulemaking is warranted.

§3.3703(a)(20) and (21) [§11.901(10) and (11)]: Some commenters support alternative two as being more reasonable and in line with Attorney General Opinion No. JC-0502. The commenters assert that alternative one seeks information that goes beyond the scope of TDI's statutory authority and the attorney general's opinion. The commenters support the provision of information only on request, as proposed in alternative two, as consistent with their current procedures. Other commenters support TDI's efforts to promulgate rules which assist providers in determining whether reimbursement has been made in accordance with the contract.

Some commenters expressed disagreement with Attorney General Opinion No. JC-0502, concerning TDI's authority to promulgate this rule. The commenters believe that the proposal exceeds TDI's statutory authority.

Agency Response: The department disagrees. The Attorney General concluded that it is within TDI's authority to construe the prompt payment provisions of Arts. 3.70-3C Sec.3A (i) and 20A.18B(i) to promulgate rules to require disclosure of fee schedules and bundling and downcoding policies.

§3.3703(a)(20) [§11.901(10)] - Misuse of Information and Fraud: Some commenters assert that alternative one does not protect carriers from the potential of provider misuse of the disclosed information. The commenters believe that the proposal will result in an increase either in inflated provider charges or fraudulent billing activities by a few providers, causing a financial impact on the health care system. The commenters believe that disclosing coding guidelines to these particular providers will make it easier to submit fraudulent claims. A commenter asserts that disclosure of fee schedules and disclosure of claims review and fraud detection policies are two distinct issues, which should be addressed independently. Fee schedules should be disclosed, but the details of claims review and fraud detection processes should not be disclosed. To counter the possibility of the information being used for fraud, one commenter suggests that the insurer be allowed to provide only a summary description of the bundling and coding policies and, upon written request, an explanation of the methodology of the coding decision on an individual claim.

A commenter recognizes TDI's limited authority over physicians and providers and recommends adding a provision to allow carriers to include a contractual remedy for inappropriate disclosure of the information. Another commenter recommends stringent penalties to ensure that providers do not release proprietary fee schedules and coding guidelines because, without sanctions, there is nothing to prevent or discourage providers from improperly using or disclosing such information. Another commenter points out that neither alternative imposes a requirement on providers to maintain the information they receive from carriers as confidential. The commenter believes that confidentiality should be required, and that carriers should be granted some kind of recourse against providers who breach confidentiality.

Agency Response: The intent of the rule is to ensure that preferred providers are able to determine what they should be paid in accordance with the contract. If a carrier suspects that fraud is occurring it has an obligation to advise the department and other authorities so that action can be taken. Because the Insurance and Penal Codes contain specific provisions concerning fraud, the department declines to include language regarding penalties in this rule. The rule does not prohibit a carrier from including additional remedies for inappropriate disclosure in its provider contracts.

The department disagrees that a provision mandating confidentiality of proprietary information is appropriate for this rule, which merely provides for copyrighted or other proprietary information to be supplied by an alternate means. It is the responsibility of those claiming copyright or other proprietary concerns to assert this interest to whomever receives the information and to employ confidentiality agreements or other methods to restrict the access to and use of their information. As such, any remedies for violation would also be a matter for the party seeking to protect the information.

§3.3703(a)(20)(A)(ii) [§11.901(10)(A)(ii)]: A commenter recommends deletion of clause (ii) concerning nonstandard codes since HIPAA requires deletion of such codes. Other commenters recommend that the rule reference HIPAA in connection with standard transactions and that language be included allowing the rule to change in accordance with changes in the law. A commenter agrees that if standard coding methodology is not being used, then disclosure may be needed. One commenter says the rule should either specify an inclusive list of adjudication methodologies to be addressed, or disallow nonstandard billing practices. A commenter notes that the terms HCPCS and ICD-9-CM codes are commonly understood, but should still be defined in the rule.

Agency Response: The department has combined subclauses (i) and (ii) and eliminated the term "nonstandard." This change requires disclosure of the coding methodology employed by the carrier and contains no requirement applicable to codes not in use, regardless of the reason. However, the carrier must provide any changes to information affecting payment under the contract. The department disagrees that commonly understood terms that are recognized in the industry should be defined in the rule.

§3.3703(a)(20) [§11.901(10)(A)(v) & (vi)]: A commenter states that the provisions could be interpreted to require more information than intended, including the disclosure of the entire claims processing manual, internal communications, changes in the claims processing system and other internal processes not related to claims payment. The commenter says this would be cumbersome and unnecessary and would disrupt on-going system improvement, innovation and updating. The commenter recommends limiting the requirement to disclosure of claims payment information. Another commenter suggests revising the requirements to focus on claims payment rather than claims processing. The commenter believes that disclosure of claims processing requirements is overly broad and would inundate physicians and providers with highly technical manuals that would be of little value in understanding reimbursement. The commenter suggests deleting the broad phrase "processing of claims" and instead concentrating on disclosure in the context of a claim adjudication inquiry.

Agency Response: The purpose of the rule is to assure that carriers provide sufficient information for a skilled reasonable person to make a determination of the payment to be made under the contract. The department does not intend the rule to place an undue burden on carriers or to inundate preferred providers with unnecessary information. The department tailored the adopted rule to address only those aspects of claims processing that achieve this purpose.

§3.3703(a)(21) [§11.901(11)]: Some commenters recommend that alternative two define terms and require requests to be in writing to avoid disputes as to whether and when a request was made. Some commenters ask that the carrier be given 30 days from the date of its receipt of the written request to provide the information. If Internet access is not allowed, the commenter asks that the request for information be in writing to protect the carrier's proprietary information and validate the requestor's right to receive the information.

Agency Response: The department agrees with commenters' concerns that disputes regarding receipt of requests for the required information should be avoided. A preferred provider may submit a request by e-mail, facsimile or other reasonable and verifiable means in order to receive the required information. Because the department is adopting alternative one, definition of terms for alternative two is not necessary.

§3.3703(a)(20) and (21) [§11.901(10)(F) and (11)(E)] - Effective date: If alternative one is selected, some commenters recommend an extension of the 90-day timeframe for compliance. Specifically, one commenter requests 180 days to comply, while another commenter suggests January 1, 2003. Some commenters request that compliance with alternative two be at least 90 days, with one commenter requesting 180 days, from the effective date of the rule to provide plans sufficient time to revise contracts. Another commenter suggests that plans be given 30 days from the effective date of subparagraph (E) to bring contracts into compliance.

Agency Response: The department acknowledges the possibility that some carriers will need time to develop the procedures necessary to comply. Accordingly, the rule requires a carrier to provide the required information, in existing contracts, to the preferred provider by the later of the 90th day after the effective date of this rule or the 30th day after the date the carrier receives the preferred provider's request. For contracts entered into or renewed after the rule takes effect, beginning on the 90th day after the effective date of the rule, carriers must provide the required information upon request contemporaneously with other contractual materials.

§3.3703(a)(21) [§11.901(11)]: A commenter believes that alternative two allows the physician or provider to request entire fee schedules which will be costly to provide. The commenter asks that a provider be limited to requesting fee schedules for the provider's specialty and a specific number of codes within that specialty. Another commenter asks that the carrier only have to provide the top 25 or 50 CPT codes, based on the provider's practice or specialty, but allow for written requests of any additional CPT codes. Another commenter suggests that alternative two would be more manageable if the ability to request information of the carrier was claim specific.

A commenter states that it would be extremely expensive to require carriers to give every preferred provider a specific summary of benefits tailored to that specific physician or specialty. The commenter also believes it also would not be necessary, because each policy governs payments under the policy and it is only the amount of discount from the provider's fee schedules that determines the level of compensation.

Agency Response: The department does not intend the rule to place an undue burden on carriers or to inundate preferred providers with unnecessary information. Based on comments, the department is adopting a modified version of alternative one, which requires that a carrier provide a fee schedule related only to the services reasonably expected to be provided under the preferred provider's contract with the carrier. A carrier must also provide a toll-free number or electronic address to allow a preferred provider to access information regarding services not included in the fee schedule initially provided. The department understands that there will be expenses involved in providing fee schedules to preferred providers, and addressed this issue in the preamble to the proposed rule. However, in the adopted rule, the department has mitigated the expenses involved by allowing the carrier flexibility to provide the required information by alternative means, upon request. It is the department's intent that preferred providers receive sufficient information to determine the payment to be made in accordance with their contract. The department disagrees with the last portion of this comment. Due to the nature of the comments received, the department believes that the availability of a fee schedule to preferred providers is necessary.

§3.3703(a)(20)(A)(i)(II) [§11.901(10)(A)(i)(II)]: A commenter inquires as to whether carriers can use existing toll-free numbers.

Agency Response: A carrier may use an existing toll-free number.

§3.3703(a)(20)(A)(i)(II)(v)&(vi) [§11.901(10)(A)(i)(II)(v)&(vi)]: A commenter points out that certain factors are included in the proper payment of claims that do not include valuing the claims or correct coding of the claim. These factors include a medical director determining a claim is not medically necessary or a carrier identifying a pattern of fraudulent billing. The commenter notes that these type of factors are not included in the scope of the rule. A commenter contends that coding requirements are specific to diagnosis, procedure code, severity level, and treatment guidelines, while claims are adjudicated based on the interrelationship of multiple elements, and that compliance with the provision will be difficult. The commenter acknowledges that carriers can provide the name of the software and a summary of the coding guidelines to determine applicability but may not be able to relate each coding factor back to each fee schedule.

A commenter questions how updates to CPT codes and changes to internal systems or processes will be handled. The commenter contends that the requirement is too burdensome and will inhibit ongoing system updates.

Agency Response: It is the department's intent that preferred providers receive sufficient information so that a skilled reasonable person can determine the payment to be made under the terms of the contract. The department recognizes that the commenter's examples of determining medical necessity and identifying fraudulent billing patterns, as well as other factors, may affect the actual amount of reimbursement, but these factors are outside the scope of this rule as well as the statute. The department believes that allowing the information to be distributed electronically and upon request addresses the concerns regarding any potential burden associated with changing the CPT codes or internal systems and processes.

§3.3703(a)(11) & (20)(A)(vii) [§11.901(10)(A)(vii)]: A commenter believes that the use of the phrase "including but not limited to" is ambiguous and requires carriers to guess about the possible existence of other laws that are not specifically cited. The commenter requests deletion of the phrase or the inclusion of the specific citation to all statutes and rules that TDI believes are applicable to the prompt payment of clean claims. Another commenter recommends deletion of clause (vii) as carriers are already required to comply with the provisions of the statute.

Agency Response: The department has deleted clause (vii) as unnecessary since the requirement is already in paragraph (11). A carrier is required to comply with all applicable laws and rules whether or not specified, including Art. 3.70-3C §3A. "Including" is a term of enlargement and not of limitation or exclusive enumeration, and the department has accordingly deleted the phrase "but not limited to."

§3.3703(a)(20)(A)(iii) [§11.901(10)(A)(iii)]: Some commenters want the rule to require carriers to inform the physician or provider of updates to their bundling processes. Another commenter asserts that downcoding of a clean claim is a violation of the prompt pay rules.

Agency Response: The statute as well as the rule require 60 days advance notice of amendments, revisions or substitutions of the required information. The department disagrees with the commenter that downcoding per se of a clean claim is a violation of the prompt pay rules.

§3.3703(a)(20)(B)(ii) and (iii) [§11.901(10)(B)(ii) and (iii)]: A commenter recommends that clauses (ii) and (iii) be combined into (ii). Two commenters recommend the removal of references to Medicaid or Medicare fee schedules because of the potential for confusion.

Agency Response: The department has changed the rule to permit the delivery of the information by any reasonable means upon request from the preferred provider. The department does not agree that the use of Medicaid and Medicare fee schedules as examples creates confusion as these schedules are common benchmarks for compensation in contracts between carriers and preferred providers.

§3.3703(a)(20)(B) [§11.901(10)(B)]: A commenter suggests that if other documents are utilized to convey changes regarding reimbursement provisions, these documents need to be provided to the physician or provider at the time the contract is submitted for initial review rather than at the time of execution of the contract. Another commenter requests that the additional documents be provided at least 60 days before the contract is presented for execution.

Agency Response: Adopted alternative one provides for delivery of required information, regardless of format, upon request from the preferred provider. For contracts entered into or renewed on or after the effective date of these amendments, the carrier must provide the required information contemporaneously with other contractual materials. The department reminds commenters that any amendments, revisions or substitutions to the information are not effective unless the carrier provides at least 60 days written notice.

§3.3703(a)(20)(B)(iii) [§11.901(10)(B)(iii)]: A few commenters suggest that, along with HMOs, delegated networks, delegated entities and delegated third-parties as defined by statute (HB 2828) should be referenced. Some other commenters prefer alternative two over alternative one, but see a fundamental flaw in that neither includes a network entity.

Agency Response: Since the rules apply to HMOs and PPOs, the rules also apply to any entity with which the HMO or PPO has contracted. Note, however, that a carrier remains responsible for compliance regarding a delegated function.

§3.3703(a)(20)(C), (a)(21)(D) [§11.901(10)(C) and (11)(D)]: Some commenters request that the references to copyright laws and licensing agreements be removed because they are inconsistent with HB 610 which provides for the disclosure of claims processing information. These commenters are concerned that a carrier will use these laws or agreements to avoid their disclosure obligations. In the alternative, if the copyright and licensing exclusions are maintained, a commenter requests deleting the words "reasonable" and "training" and make no other changes. The commenter also suggests that any licensing exclusions should only be effective for one year.

Agency Response: The department disagrees that references to copyrighted or other proprietary information should be deleted. The rule contains sufficient detail to mandate that any entity asserting a copyright or other similar interest must provide the degree of information necessary to inform a preferred provider about fee schedule and coding procedures. The rule does not, however, preclude carriers and preferred providers from engaging in a dialogue concerning the adequacy of any particular piece of information furnished, and the department expects that parties will air and resolve their concerns without the department's involvement. Comments received indicate that some carriers are already providing this information without any problems of this nature. The words "reasonable" and "training," also contained in subparagraph (A), are useful in describing the required level of detail. It would not be appropriate to limit licensing exclusions to only one year, as copyright or other proprietary interests may not be so restricted.

§3.3703(a)(20)(C), (21)(D) [§11.901(10)(C), and (11)(D)]: Some commenters note that the provisions of §3.3703(a)(21) requiring the insurer to provide the name, edition, and model of software may not be sufficient to meet the requirements of the law. The commenters also note that there is no provision in either alternative for reasonable access to or availability of the software.

Some commenters believe that the skilled reasonable person standard conflicts with the portion of the section that requires a summary of the information where a licensing agreement prohibits disclosure of the claims editing software. These commenters note that a carrier could be out of compliance with the reasonable person standard by providing only summary information. A commenter believes that allowing carriers to provide a summary of the bundling and downcoding logic will not provide sufficient information to providers. Another commenter states that the rule does not sufficiently define the required level of detail for the summary a carrier may provide in lieu of violating copyright law or licensing agreements. This standard would make carriers guess as to how much detail is sufficient, and subject them to penalties if it is determined after the fact that the level of detail they provided was not enough.

Agency Response: The department appreciates the commenters' concern that the rule does not guarantee access to any particular software. The department also recognizes that some carriers are subject to licensing agreements. However, a carrier can reveal the function any computer program is intended to perform without violating a licensing agreement. Any other conclusion suggests that the carrier is ceding control of the claims payment process to its software vendor, which is neither likely nor acceptable. A summary is simply a presentation or collection of less than the entire material included in a particular category. Adopted alternative one establishes a standard that the information submitted to the preferred provider, whether or not in summary form, must suffice to enable a skilled reasonable person to determine the payment to be made according to the terms of the contract. A carrier providing this level of detail will be in compliance. The rule allows carriers flexibility to meet this requirement by utilizing means agreeable to both parties.

§§3.3703(a)(20)(D), (a)(21)(B) [§11.1901(10)(D) and (11)(B)]: A commenter suggests defining "routine changes" that would not require the 60-day notice and "material changes" that would require the 60-day notice. According to the commenter, routine changes occur frequently and are accepted as the norm by physicians and providers. These changes typically have a minor impact on the physician or provider. On the other hand, material changes are intended to alter substantially the overall methodology or reimbursement level of the fee schedule.

A commenter objects that the second proposal only requires the provision of notice for "material" changes without any guidance as to what such "material" changes may be.

Agency Response: The department has adopted alternative one, which does not contain the term "material changes." The standard in the rule is that any amendment, revision or substitution of the required information that could make a difference in the amount to be paid under the contract is subject to the 60-day notice requirement in (D). However, as noted in response to a previous comment, any change to the source information outside the control of the carrier, such as an incremental change to a fee schedule or coding guideline, would not be a change to the carrier's claims payment policies or procedures or to the information required by this rule, and would not require 60 days notice under Article 3.70-3C, §3A(k) and 28 TAC §3.3703(a)(20)(D).

§3.3703(a)(20)(D) [§11.901(10)(D)]: Some commenters request inclusion in this subparagraph of a reference to policies and procedures, such as turning an edit off or on or adopting a new policy based on recent FDA approval of a procedure or equipment, as they may have a direct impact on claims payment.

Agency Response: To the extent that policies and procedures affect determination of the payment to be made under the contract, the rule requires carriers to provide this information. However, it is not within the scope of the rule as to whether particular services are covered under the health benefit plan.

§3.3703(a)(20)(F), (a)(21) [§11.901(10)(F)]: A commenter is concerned that the use of the phrase "these amendments" may be confusing and that some carriers may resist renewing or amending existing contracts to avoid disclosure of the required information. The commenter suggests that the language be changed to "this paragraph." Another commenter suggests that the first sentence be deleted to clarify that the requirement for disclosure applies to current contracting preferred providers. A commenter requests that, if alternative two is adopted, the provisions of §3.3703(a)(20)(F) be included in the language of the rule so that the amendments will apply to ongoing contracts as well as contracts entered into after the effective date of the rule.

Agency Response: The rule applies to all carriers as of the effective date of the rule. Contracts entered into or renewed on or after the effective date of this rule must comply with the provisions of paragraph (20). Carriers operating under existing contracts must provide the required information to the preferred provider in accordance with subparagraph (F).

§3.3703(a)(20)(G)(i) [§11.901(10)(G)(i)]: Some commenters suggest that, along with the disclosures mentioned, physicians and providers should be allowed to disclose the information for purposes of legislative or regulatory change, civil actions, or other legal remedies and purposes. Another commenter believes that this subparagraph improperly limits the physician's use of the information to something less than is allowed by law.

Agency Response: The department disagrees. The commenters' concerns are outside the scope of this rule. If, for example, someone were required to produce this information as part of a civil action, other considerations, such as the contract between the parties, private confidentiality agreements, or contractual or civil penalties, would govern disclosure of this information for purposes other than determining the payment to be made under the contract.

§3.3703(a)(20)(G) and (21)(C) [§11.901(10)(G)(i) & (ii) and (11)(C)]: Some commenters believe that the clauses are too broad and may allow the sharing of fee schedules with persons that may not need or have a right to the information, as well as the disclosure of information that should otherwise be treated as confidential. The commenters suggest deleting the phrase "or other business operations" from the clauses. A few commenters suggest limiting the use and disclosure to entities that directly support the provider's billing process. A few commenters request that the department amend both alternatives to allow carriers to immediately terminate contracts with providers who fail to comply with the restrictions on disclosure. Another commenter suggests that alternative two include the specific prohibition from improper disclosure found in alternative one.

A commenter is concerned that as physicians and providers have access to fee schedules, the carriers will lose the ability to negotiate provider discounts for members. The commenter is concerned that this will result in higher premiums, and increase the number of uninsureds as some employers elect to drop coverage due to cost. The commenter says the rule only benefits physicians and providers, not the consumer.

Agency Response: The department agrees that the phrase "other business operations" is overly broad and has deleted the phrase. Regarding the potential effect on discounts, the department understands that implementation of the statute will likely result in preferred providers receiving more information during the contracting process than they currently do; however, the statute requires full disclosure of a carrier's claims payment policies and procedures. The department declines to include language regarding penalties for improper disclosure, but notes that nothing in the rule prohibits a carrier from negotiating a contractual remedy.

§3.3703(a)(20) and (21) [11.901(10) & (11)] - Delegation Issues: A commenter suggests changing the paragraph to only require disclosure of information that is actually governed by the contract since a PPO network would not be able to disclose the payment processes of carriers as they are not privy to that information. One commenter believes that these subsections are premised on the idea that the insurance company determines the fee schedules and fee guidelines. The commenter considers this reasoning flawed and argues that the typical PPO contract is based on fee schedules maintained by the healthcare provider. A commenter does not believe that a PPO or a network entity can provide information that would meet the reasonable person standard set forth in paragraph (20). The commenter explains that because of such factors as covered and non-covered services, deductibles, co-payments, co-insurance, amounts paid for other coverages, it is not possible to provide sufficient information in the contract to allow for all contingencies.

Some commenters offered a reminder that some small- to medium-sized carriers do not contract directly with physicians and healthcare providers, but rather utilize network providers. Thus, the commenter considers it an unreasonable burden to impose on carriers to furnish the fee schedules. The health care provider should be required to furnish the fee schedules to the insurer. Further, the commenter urges that the insurers should only be required to furnish fee schedules where the insurer maintains the schedule and requires the fee schedules to be used for determining compensation.

Agency Response: The department understands there are a variety of contractual arrangements, some involving the participation of delegated entities and delegated third parties who have assumed the responsibility for claims payment. While a carrier may delegate to a delegated entity or delegated third party the duty to provide reimbursement information, the carrier remains ultimately responsible for ensuring that the preferred provider receives the information. The factors referred to in the comment are outside the scope of this rule, as noted in Section 3 of this adoption order.

For: Plastic Eye Surgery Associates, Austin Anesthesiology Group of Texas Physician Providers, HealthSouth Corporation, Metropolitan Surgical Specialties, and various physicians.

For with changes: Texas Medical Association, United Healthcare of Texas, Inc., Texas Hospital Association, Collin/Fannin County Medical Society, M.D. Anderson Cancer Center, Women Partners in OB/GYN, Dallas Orthopaedic Clinic Associated, Harris County Medical Society, Northeast OB/GYN Associates, P.L.L.C., Bexar County Medical Society, Office of Public Insurance Counsel, Seven Oaks Women's Center, Southwest Physician Associates, Tarrant County Medical Society, and American National Insurance Company.

Against: Texas Association of Health Plans, Unicare Life and Health Insurance Company, Unicare Health Plans of Texas, Inc., Unicare Health Insurance Company of Texas, Aetna, Texas Association of Business, HealthSmart, Texas Association of Preferred Provider Organizations, Texas Association of Life and Health Insurers, First Health Group Corp., Alliance of American Insurers, American Association of Health Plans, Golden Rule Insurance Company, Great-West Life & Annuity Insurance Company and One Health Plan of Texas, Humana, Inc., Insurance Council of Texas, Principal Financial Group, and Scott & White Health Plan.

The amendments are adopted under the Insurance Code Art. 3.70-3C, Section 3A and §36.001. Art. 3.70-3C, Section 3A(n) gives the Commissioner the authority to adopt rules as necessary to implement Art. 3.70-3C, Section 3A. Art. 3.70-3C, Section 3A(i) provides that an insurer shall make available to a preferred provider its claim processing policies and procedures. The Commissioner's authority to adopt rules relating to the disclosure of claims payment processes such as fee schedules, bundling processes, and downcoding policies was clarified by Attorney General Opinion No. JC-0502. The opinion states that the Texas Department of Insurance is authorized to promulgate rules to require preferred provider benefit plans and HMOs to disclose their fee schedules, bundling processes, and downcoding policies. Section 36.001 provides that the Commissioner of Insurance may adopt rules to execute the duties and functions of the Texas Department of Insurance as authorized by statute.

§3.3703.Contracting Requirements.

(a) An insurer marketing a preferred provider benefit plan must contract with physicians and health care providers to assure that all medical and health care services and items contained in the package of benefits for which coverage is provided, including treatment of illnesses and injuries, will be provided under the plan in a manner that assures both availability and accessibility of adequate personnel, specialty care, and facilities. Each contract must meet the following requirements:

(1) A contract between a preferred provider and an insurer shall not restrict a physician or health care provider from contracting with other insurers, preferred provider plans, preferred provider organizations, or HMOs.

(2) Any term or condition limiting participation on the basis of quality, contained in a contract between a preferred provider and an insurer, shall be consistent with established standards of care for the profession.

(3) In the case of physicians or practitioners with hospital or institutional provider privileges who provide a significant portion of care in a hospital or institutional provider setting, a contract between a preferred provider and an insurer may contain terms and conditions which include the possession of practice privileges at preferred hospitals or institutions, except that if no preferred hospital or institution offers privileges to members of a class of physicians or practitioners, the contract may not provide that the lack of hospital or institutional provider privileges may be a basis for denial of participation as a preferred provider to such physicians or practitioners of that class.

(4) A contract between an insurer and a hospital or institutional provider shall not, as a condition of staff membership or privileges, require a physician or practitioner to enter into a preferred provider contract.

(5) A contract between a preferred provider and an insurer may provide that the preferred provider will not bill the insured for unnecessary care, if a physician or practitioner panel has determined the care was unnecessary, but the contract shall not require the preferred provider to pay hospital, institutional, laboratory, x-ray, or like charges resulting from the provision of services lawfully ordered by a physician or health care provider, even though such service may be determined to be unnecessary.

(6) A contract between a preferred provider and an insurer shall not:

(A) contain restrictions on the classes of physicians and practitioners who may refer an insured to another physician or practitioner; or

(B) require a referring physician or practitioner to bear the expenses of a referral for specialty care in or out of the preferred provider panel. Savings from cost-effective utilization of health services by contracting physicians or health care providers may be shared with physicians or health care providers in the aggregate.

(7) A contract between a preferred provider and an insurer shall not contain any financial incentives to a physician or a health care provider which act directly or indirectly as an inducement to limit medically necessary services. This subsection does not prohibit the savings from cost-effective utilization of health services by contracting physicians or health care providers from being shared with physicians or health care providers in the aggregate.

(8) A contract between a physician, physicians' group, or practitioner and an insurer shall have a mechanism for the resolution of complaints initiated by an insured, a physician, physicians' group, or practitioner which provides for reasonable due process including, in an advisory role only, a review panel selected by the manner set forth in subsection (b)(2) of §3.3706 of this title (relating to Designation as a Preferred Provider, Decision to Withhold Designation, Termination of a Preferred Provider, Review of Process).

(9) A contract between a preferred provider and an insurer shall not require any health care provider, physician, or physicians' group to execute hold harmless clauses that shift an insurer's tort liability resulting from acts or omissions of the insurer to the preferred provider.

(10) A contract between a preferred provider and an insurer shall require a preferred provider who is compensated by the insurer on a discounted fee basis to agree to bill the insured only on the discounted fee and not the full charge.

(11) A contract between a preferred provider and an insurer shall require the insurer to comply with all applicable statutes and rules pertaining to prompt payment of clean claims, including Insurance Code Article 3.70-3C §3A (Prompt Payment of Preferred Providers) and §§21.2801-21.2820 of this title (relating to Submission of Clean Claims) with respect to payment to the provider for covered services that are rendered to insureds.

(12) A contract between a preferred provider and an insurer shall require the provider to comply with Insurance Code Article 3.70-3C §4 (Preferred Provider Benefit Plans), which relates to Continuity of Care.

(13) A contract between a preferred provider and an insurer shall not prohibit, penalize, permit retaliation against, or terminate the provider for communicating with any individual listed in Insurance Code Article 3.70-3C §7(c) (Preferred Provider Benefit Plans) about any of the matters set forth therein.

(14) A contract between a preferred provider and an insurer conducting, using, or relying upon economic profiling to terminate physicians or health care providers from a plan shall require the insurer to inform the provider of the insurer's obligation to comply with Insurance Code Article 3.70-3C §3(h) (Preferred Provider Benefit Plans).

(15) A contract between a preferred provider and an insurer that engages in quality assessment shall disclose in the contract all requirements of Insurance Code Article 3.70-3C §3(i) (Preferred Provider Benefit Plans).

(16) A contract between a preferred provider and an insurer shall not require a physician to issue an immunization or vaccination protocol for an immunization or vaccination to be administered to an insured by a pharmacist.

(17) A contract between a preferred provider and an insurer shall not prohibit a pharmacist from administering immunizations or vaccinations if such immunizations or vaccinations are administered in accordance with the Texas Pharmacy Act, Article 4542a-1, Texas Civil Statutes and rules promulgated thereunder.

(18) A contract between a preferred provider and an insurer shall require a provider that voluntarily terminates the contract to provide reasonable notice to the insured, and shall require the insurer to provide assistance to the provider as set forth in Insurance Code Article 3.70-3C §6(e)(2) (Preferred Provider Benefit Plans).

(19) A contract between a preferred provider and an insurer shall require written notice to the provider upon termination by the insurer, and in the case of termination of a physician or practitioner, the notice shall include the provider's right to request a review, as set forth in §3.3706(c) of this title (relating to Designation as a Preferred Provider, Decision to Withhold Designation, Termination of a Preferred Provider, Review of Process).

(20) A contract between a preferred provider and an insurer must include provisions that will entitle the preferred provider upon request to all information necessary to determine that the preferred provider is being compensated in accordance with the contract. A preferred provider may make the request for information by any reasonable and verifiable means. The information must include a level of detail sufficient to enable a reasonable person with sufficient training, experience and competence in claims processing to determine the payment to be made according to the terms of the contract for covered services that are rendered to insureds. The insurer may provide the required information by any reasonable method through which the preferred provider can access the information, including e-mail, computer disks, paper or access to an electronic database. Amendments, revisions or substitutions of any information provided pursuant to this paragraph must be made in accordance with subparagraph (D) of this paragraph. The insurer shall provide the fee schedules and other required information by the later of the 90th day after the effective date of this paragraph or the 30th day after the date the insurer receives the preferred provider's request.

(A) This information must include a preferred provider specific summary and explanation of all payment and reimbursement methodologies that will be used to pay claims submitted by the preferred provider. At a minimum, the information must include:

(i) a fee schedule, including, if applicable, CPT, HCPCS, ICD-9-CM codes and modifiers:

(I) by which all claims for covered services submitted by or on behalf of the preferred provider will be calculated and paid; or

(II) that pertains to the range of health care services reasonably expected to be delivered under the contract by that preferred provider on a routine basis along with a toll-free number or electronic address through which the preferred provider may request the fee schedules applicable to any covered services that the preferred provider intends to provide to an insured and any other information required by this paragraph that pertains to the service for which the fee schedule is being requested if that information has not previously been provided to the preferred provider;

(ii) all applicable coding methodologies;

(iii) all applicable bundling processes;

(iv) all applicable downcoding policies;

(v) a description of any other applicable policy or procedure the insurer may use that affects the payment of specific claims submitted by or on behalf of the preferred provider, including recoupment; and

(vi) any addenda, schedules, exhibits or policies used by the insurer in carrying out the payment of claims submitted by or on behalf of the preferred provider that are necessary to provide a reasonable understanding of the information provided pursuant to this paragraph.

(B) In the case of a reference to source information as the basis for fee computation that is outside the control of the insurer, such as state Medicaid or federal Medicare fee schedules, the information provided by the insurer shall clearly identify the source and explain the procedure by which the preferred provider may readily access the source electronically, telephonically, or as otherwise agreed to by the parties.

(C) Nothing in this paragraph shall be construed to require an insurer to provide specific information that would violate any applicable copyright law or licensing agreement. However, the insurer must supply, in lieu of any information withheld on the basis of copyright law or licensing agreement, a summary of the information that will allow a reasonable person with sufficient training, experience and competence in claims processing to determine the payment to be made according to the terms of the contract for covered services that are rendered to insureds as required by subparagraph (A) of this paragraph.

(D) No amendment, revision, or substitution of claims payment procedures or any of the information required to be provided by this paragraph shall be effective as to the preferred provider, unless the insurer provides at least 60 calendar days written notice to the preferred provider identifying with specificity the amendment, revision or substitution. Where a contract specifies mutual agreement of the parties as the sole mechanism for requiring amendment, revision or substitution of the information required by this paragraph, the written notice specified in this section does not supersede the requirement for mutual agreement.

(E) Failure to comply with this paragraph constitutes a violation as set forth in subsection (b) of this section.

(F) This paragraph applies to all contracts entered into or renewed on or after the effective date of this paragraph. Upon receipt of a request, the insurer must provide the information required by subparagraphs (A) - (D) of this paragraph:

(i) for contracts entered into or renewed on or after the effective date of this paragraph, to the physician or provider by the later of the 90th day after the effective date of this paragraph or contemporaneously with other contractual materials; or

(ii) for an existing contract that does not contain the terms set forth in this paragraph, to the contracting physician or provider by the later of the 90th day after the effective date of this paragraph or the 30th day after the date the insurer receives the contracting physician's or provider's request.

(G) A physician or provider that receives information under this paragraph:

(i) may not use or disclose the information for any purpose other than the physician's or provider's practice management and billing activities;

(ii) may not use this information to knowingly submit a claim for payment that does not accurately represent the level, type or amount of services that were actually provided to an insured or to misrepresent any aspect of the services; and

(iii) may not rely upon information provided pursuant to this paragraph about a service as a verification that an insured is covered for that service under the terms of the insured's policy or certificate.

(b) In addition to all other contract rights, violations of these rules shall be treated for purposes of complaint and action in accordance with Insurance Code Article 21.21-2, and the provisions of that article shall be utilized insofar as practicable, as it relates to the power of the department, hearings, orders, enforcement, and penalties.

(c) An insurer may enter into an agreement with a preferred provider organization for the purpose of offering a network of preferred providers, provided that it remains the insurer's responsibility to:

(1) meet the requirements of Insurance Code Article 3.70-3C (Preferred Provider Benefit Plans) and this subchapter; or

(2) ensure that the requirements of Insurance Code Article 3.70-3C (Preferred Provider Benefit Plans) and this subchapter are met.

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 September 18, 2002.

TRD-200206121

Lynda Nesenholtz

General Counsel and Chief Clerk

Texas Department of Insurance

Effective date: October 8, 2002

Proposal publication date: June 14, 2002

For further information, please call: (512) 463-6327


Chapter 11. HEALTH MAINTENANCE ORGANIZATIONS

Subchapter J. PHYSICIAN AND PROVIDER CONTRACTS AND ARRANGEMENTS

28 TAC §11.901

The Commissioner of Insurance adopts amendments to §11.901, concerning required contracting provisions for health maintenance organizations (HMOs). The amendments are adopted with changes to the proposed text as published in the June 14, 2002, issue of the Texas Register (27 TexReg 5071).

The amendments address the disclosure of certain information concerning fee schedules and coding procedures that affect the payment for services provided by physicians and other health care providers pursuant to a physician or provider contract with an HMO that is subject to Texas Insurance Code Art. 20A.18B. The amendments implement Art. 20A.18B(i), which states that HMOs shall provide contracting physicians and providers with copies of all applicable claim processing policies or procedures. The amendments clarify that an HMO must disclose information concerning fees and coding that affects the payment to be made to a physician or provider for services that the physician or provider has contracted to provide on behalf of an HMO. Lack of contractual access to this information may have prevented some physicians or providers from ascertaining whether they had been compensated according to the terms of their contracts with HMOs. The adopted amendments are designed to address this situation.

The department's proposed rule contained two alternatives, each intended independently to accomplish the stated purpose. Alternative one was contained at §11.901(10) and alternative two was contained at §11.901(11) of the proposed rule. After receiving comments, the department has decided to adopt alternative one, with changes from the proposed version. In response to comments and for clarification, the department has changed §11.901(7), (8), (9), (10), (10)(A), (10)(A)(i)(I) and (II), (ii), (iv), (B), (B)(i) - (iii), (D), (F), (G)(i) and (ii). None of the changes introduce a new subject matter or affect additional persons other than those subject to the proposed rule as originally published.

The amendments to §11.901(7) require that a contract between a physician or provider and an HMO contain terms regarding compliance with all applicable prompt pay statutes and regulations. The adopted alternative, new paragraph (10) to §11.901, requires that upon request from a physician or provider, an HMO must provide physician- or provider-specific information in a level of detail so that a reasonable person with sufficient training, experience and competence in claims processing (skilled reasonable person) can determine the payment to be made according to the terms of the contract. The request may be provided by any reasonable and verifiable means, such as e-mail or facsimile. The information the HMO must provide must include a physician- or provider-specific summary and explanation of all methodologies that will be used to pay claims submitted in accordance with the contract, including a fee schedule, any applicable coding methodologies, bundling processes, downcoding policies, and any other applicable policy or procedure used by the HMO in paying claims for covered services under the contract. The information provided includes physician-specific and provider-specific fee schedules that pertain to the range of health care services reasonably expected to be provided under the contract by that contracting physician or provider. Additionally, the HMO must provide any addendum, schedule, exhibit or policy necessary to provide a reasonable understanding of the information that is being disclosed to the physician or provider. For example, a fee schedule that indicates that the HMO will reimburse certain claims at a usual and customary rate must explain how the HMO will determine the usual and customary rate for a particular service. An HMO may provide any required information using any reasonable method that is accessible by the physician or provider, including e-mail, computer disks, paper or access to an electronic database. If information is held by an outside source and is not within the control of the HMO, such as state Medicaid or federal Medicare fee schedules, the HMO must explain the procedure by which the physician or provider may access the outside source. An HMO that cannot provide any information required by §11.901(10) due to copyright laws or a licensing agreement may supply a summary of the required information. However, the summary must be sufficient to allow the physician or provider to determine the payment to be made under the contract. Any claims payment information required to be provided pursuant to this paragraph may be amended, revised or substituted only upon written notice to the physician or provider at least 60 calendar days prior to the effective date of the amendment, revision or substitution. The requirements added by paragraph (10) apply to all HMOs as of the effective date of these amendments. Upon receipt of a request, the HMO must provide the information by the later of the 90th day after the effective date of the rule or the 30th day after the HMO receives the request. However, for contracts entered into or renewed on or after the effective date of these amendments, the HMO must provide the required information upon request contemporaneously with other contractual materials. Some HMOs commented that they already have procedures established and are currently delivering this information to their physicians and providers. The department acknowledges that fact and expects that the rule's establishment of a timeframe for HMOs that have not yet implemented such procedures will not interrupt this practice.

A physician or provider receiving information pursuant to paragraph (10) may not use or disclose the information for any purpose other than practice management or billing activities. A physician or provider may not use the information to misrepresent the level of services actually performed when submitting a claim under the contract. Information provided pursuant to these amendments about a particular service does not constitute a verification that the service a physician or provider has provided or proposes to provide is a covered benefit for a particular enrollee. Paragraph (10) is not intended to dictate the types of practices, policies or procedures that relate to or affect the claims payment process an HMO may elect to employ. In addition, other plan requirements, including co-payments, co-insurance, or deductibles may also affect the actual amount of reimbursement.

Where applicable, the department has indicated comments received on the comparable Chapter 3 rule, §3.3703, published elsewhere in this issue of the Texas Register , by enclosing the reference in brackets.

General

Comment: Some commenters support the proposed rule's first alternative requiring the contract to contain the fee schedule or clear reference to any other appropriate documents. The commenters appreciate the detail and extent to which TDI recognizes that physicians and providers need to be able to completely understand how they will be reimbursed. These commenters do not support alternative two because they believe that the information should not have to be requested since price is an essential element of the contract. Another commenter notes that alternative two leaves some disclosures open for negotiation, but contends that most physicians cannot successfully negotiate the inclusion of these terms because managed care companies will not accept changes to their contracts. A commenter suggests that, if alternative two is adopted, it should contain all of the detail from alternative one (along with the commenter's suggested modifications to same). A commenter suggests that TDI adopt a "hybrid" of alternatives one and two that requires the disclosure of the information, upon request, to minimize unnecessary expenditures and provide access to appropriate information.

Agency Response: The department appreciates the commenters' input on the alternatives. The department recognizes that there are questions concerning the sufficiency of information that carriers are currently providing to physicians and providers. As previously noted, the commissioner has adopted alternative one with changes as a reasonable compromise which preserves the rule's intent yet addresses the commenters' concerns.

Comment: A commenter recommends that, consistent with HB 610, the selected alternative be modified to require carriers to disclose their utilization review policies.

Agency Response: The department believes that the requirements of Art. 20A.18B make the addition of the suggested language unnecessary. The department will continue to monitor this issue to determine if future rulemaking is warranted.

Costs: Some commenters contend that alternative one places an unnecessary and costly burden on carriers to provide information that would have little distinguishable benefit to physicians and providers. These commenters believe that the proposed rule's cost estimates have been underestimated and that the rule will have a detrimental impact on carriers, driving up the costs of health care premiums and adversely affecting the prompt payment of clean claims. Another commenter contends that the costs of complying with alternative one are at least double the costs of complying with alternative two, due to the requirement that carriers mail hundreds of thousands of codes to thousands of physicians. Some commenters note that this mass mailing will result in some physicians and providers receiving inapplicable codes and other information, as well as burdensome documentation. A commenter contends that tailoring the package to individual providers would have a high price tag as well. The commenter claims that the anticipated cost burden from alternative one would include substantial overhaul of health plan contracts, provision of massive amounts of potentially irrelevant information to providers, review of information to assure compliance with the reasonable claims reviewer standard, revision of existing contracts within the 90-day timeframe, and provision of the 60-day notice of changes to the fee and claims review information. A commenter is concerned that alternative one is too prescriptive, and will increase administrative costs and interfere with updating and improvement of the claims payment system. Other commenters believe that the proposal will give providers a competitive advantage in health plan negotiations, and will make information widely available that will gradually erode provider discounts.

Some commenters note that this provision presupposes that a physician or provider is having claims payment issues with all the carriers with which it contracts, which has not been the commenters' experience. The commenters believe it would be punitive to require all carriers to provide the amount of information set forth in the rule when some physicians and providers are satisfied with their relationship with some carriers.

The commenters contend that the second alternative will be less costly and burdensome to administer because it requires the disclosure of the information at the request of the provider. The commenters believe this will enable the carriers to provide information more tailored to the physician's or provider's practice area.

Agency Response: The department appreciates the commenters' concerns regarding the cost and difficulty of implementation. The department does not intend the rule to place an undue burden on carriers or to inundate physicians and providers with unnecessary information. Rather, it is the department's intent that physicians and providers receive sufficient information so that a skilled reasonable person can determine the payment to be made in accordance with the contract. The department believes that the rule as adopted - which allows the information to be distributed electronically or by other means and upon request - is a reasonable compromise which preserves the rule's intent yet addresses the commenters' concerns. Regarding any potentially burdensome overhaul of contracts, the department has modified alternative one so that the required information itself is not set out at length in the contract. The department understands that implementation of the statute will likely result in physicians and providers receiving more information during the contracting process than they currently do; however, the statute requires full disclosure of a carrier's claims payment policies and procedures. The department also believes that some of the comments were based on the incorrect assumption that carriers must provide a comprehensive set of claims processing materials to every contracting physician or provider rather than provider- or specialty-specific materials, as the rule states.

Internet Availability of Information: Some commenters suggest that carriers be permitted to comply with the requirement through an administrative guide, electronic-based communication, or upon request from the physician or provider. The commenters also suggest that the carrier have the option to provide the information in the most cost effective manner. A few commenters suggest allowing the information to be accessed through the Internet by contracted providers utilizing a protected password. The commenters believe that this will reduce costs for the health plan and allow a certain level of security for what is considered proprietary information. Another commenter questions the efficacy of web security to protect confidential information.

A commenter agrees that it is reasonable to require agreed fee schedules to be included in the contracts. However, because there are many different adjudication methodologies in use, their wide-ranging variety and complexity make it unwieldy to include that information in a contract.

Agency Response: The department agrees with many of these comments and has modified alternative one to allow the information to be distributed upon request and by electronic or other means. The department acknowledges the concerns about web security, but notes that carriers have access to a variety of security measures to protect web-based information. Moreover, the rule allows carriers to provide information in any reasonable format, not just via the web.

§11.901(10)(B)(iv) & (D) [§3.3703(a)(20)(B)(iv) & (D)]: A commenter requests clarification that the proposal does not require existing contracts with physicians or providers to be rewritten. Another commenter recommends deletion of these clauses as burdensome and expensive because they would require a contract amendment every time an internal manual, memo or document is updated. A commenter objects to subparagraph (D) as being too broad, having a significant cost impact, and impeding quality improvement in claims processing systems. A commenter does not believe that the contract should be the main source for reimbursement policy information. The commenter explains that most of its contracts are evergreen, subject to termination notification requirements by either party. The commenter recommends that carriers be permitted the flexibility to adapt, improve and update their administrative processes without requiring amendment of contracts to accommodate internal changes. Some commenters believe that the rule should not pertain to routine process changes but should require notice to physicians and providers of updates to schedules and claims payment software.

Agency Response: The department agrees and has modified alternative one so that the required information itself is not set out at length in the contract. Thus, an existing contract does not need to be rewritten but the required information must be provided to the physician or provider upon request. However, all new or renewed contracts must include the requirements of paragraph (10). The department believes making such materials available electronically will minimize the cost of informing physicians and providers of changes. The department notes that the basic requirement of the rule is to ensure that physicians and providers have sufficient information to determine the payment to be made in accordance with the contract, and this criterion should be used to determine when the 60-day notice is required.

§11.901(10) [§3.3703(a)(20)]: A commenter asserts that providing the voluminous information required by the proposal will slow down the negotiation of contracts, both during the 90-day compliance period and at renewal time each year, which could cause a serious disruption in services.

Agency Response: The department understands that implementation of the statute will likely result in physicians and providers receiving more information during the contracting process than they currently do. However, the statute requires full disclosure of a carrier's claims payment policies and procedures. The department believes that the rule as adopted - which allows the information to be distributed electronically and upon request - is a reasonable compromise which preserves the statute's intent yet addresses the commenters' concerns. A request may be provided by any reasonable and verifiable means, such as e-mail or facsimile. The department expects that parties will negotiate in good faith and on a schedule designed to avoid a disruption of services.

Comment: A commenter notes that the proposal makes more sense for medical professionals than for facilities, as it believes that the American Medical Association (AMA) has a longer and better track record for standardizing treatment codes than does the American Hospital Association (AHA). The commenter advises that listing adjudication methodologies will not benefit facilities that insist upon contracts with a percent discount, as opposed to a per diem, case rate, or DRG basis.

Agency Response: The department appreciates the commenter's concern that some aspects of the rule may affect some physicians and providers differently than others. The purpose of the rule, however, is simply to assure the delivery of sufficient information for a skilled reasonable person to make a determination of the payment to be made under a contract, regardless of the particular fee schedule or billing practice.

§11.901(11) [§3.3703(a)(20)]: Some commenters support alternative two with changes. The commenters recommend a more balanced approach to disclosure that would also require physicians and providers to disclose to carriers a list of their billed charges for treatment and services. The commenters believe that a dual disclosure process is necessary to maintain a balanced negotiation process that is not unduly weighted in favor of one party. The commenters also believe that this approach will be beneficial to consumers.

Agency Response: The department recognizes this concern, but notes that it has limited authority over physicians and providers and suggests that carriers address this issue in their contract negotiations.

§11.901(10)(B) & (C) [§3.3703(a)(20)(B) & (C)]: A commenter recommends adding references to utilization review (UR) criteria because these criteria are used to determine both medical necessity and the level of reimbursement to be paid.

Agency Response: The department declines to make this change as Art. 20A.18B requires only the disclosure of UR policies. However, Insurance Code Art. 21.58A stipulates that providers are entitled to the UR determination of medical necessity for proposed services and sets forth the timetable for notifying the provider of the decision. It further states that the notice of the UR decision must include a description or the source of the screening criteria upon which that decision is based.

§11.901(10)(A) [§3.3703(a)(20)(A)]: A few commenters suggest removing the word "reasonable" before the word "person" because it is redundant in context. Some commenters recommend deleting the word "summary" because the term is inconsistent with the type of detailed information that must be provided.

Agency Response: The department disagrees that the word "reasonable" is redundant. Sufficiency of the information is gauged in part by the recipient, who must be reasonable as well as possess sufficient training, experience, and competence in claims processing. The department is using the reasonable person standard because it is a well established legal benchmark.

As to deletion of "summary," the other requirements the rule places on summaries make the term specific and meaningful as a standard for compliance. So long as a carrier ensures that its summary includes sufficient information to meet the skilled reasonable person standard, it will be in compliance. The rule allows carriers flexibility to meet this requirement by utilizing any reasonable method that is accessible by the physician or provider.

§11.901(10)(C) [§3.3703(a)(20)(C)]: A commenter suggests that the rule mandate that health plan contracts require training certification for provider billing staff.

Agency Response: The department disagrees that this is necessary, although a carrier can provide training for provider billing staff if it desires. The department believes that the skilled reasonable person standard contained in the rule is sufficient to address this concern.

§11.901(10)(A)(i), (i)(II) - (iv) [§3.3703(a)(20)(A)(i), (i)(II) - (iv)]: A commenter recommends that the provisions describing the carrier's fee schedule be expanded to include certain billing codes or code groupings and per diem and case rate payments and that the services that are excluded from the per diem or case rate amounts be identified.

Some commenters recommend the addition of references to standard coding methodologies, utilization review criteria and policies developed or used by the HMOs, and procedures or revenue code groupings that contribute to the determination of case rates or per diem payments. Some commenters also seek definitions for "bundling," "downcoding," "component codes," "standard coding methodology," "nonstandard coding methodology" and "recoupment," as well as the phrase "global service periods, comprehensive codes, component codes and mutually exclusive procedures."Agency

Response: The department disagrees that this is necessary, as the rule makes clear that the carrier has to provide sufficient information so that a person meeting the skilled reasonable person standard can determine the payment to be made under the contract. Although the adopted rule does specify certain methodologies and processes, this is not an exclusive list. "Including" is a term of enlargement and not of limitation or exclusive enumeration. The department has combined subclauses (i) and (ii) to delete reference to "nonstandard." The department does not believe it is necessary to define the remaining terms, as they are widely recognized by the industry.

§11.901(10)(A)(i)(I) [§3.3703(a)(20)(A)(i)(I)]: A commenter recommends inserting the words "to be" before the word "submitted" to clarify that the carrier must disclose all fees related to all possible services the physician or provider may provide. The commenter believes that, as written, this could be interpreted to mean that a carrier must provide only fees associated with codes a physician has previously submitted.

Agency Response: The department disagrees, as it believes that the provisions as written are sufficiently clear to explain that the information to be provided is not limited to only those fees associated with codes a contracting physician or provider has previously submitted. The carrier must provide the fee schedules and applicable codes and modifiers by which all claims for covered services will be calculated. This includes all services contemplated by the contract between the carrier and the physician or provider, regardless of whether claims for any of those services have been previously submitted.

§11.901(10)(A)(i)(II) [§3.3703(a)(20)(A)(i)(II)]: Some commenters suggest replacing the words "may request" with the words "will receive" so that the carrier cannot refuse to provide the fee schedules. A few commenters also suggest adding the phrase "by law" after the word "authorized" to clarify that the law allows for the disclosure of the information as well as clarify that the reference is to any services the physician may legally provide.

Agency Response: With regard to the first comment, the department believes that the adopted rule ensures the physician and provider will receive the information upon request. The department has removed the word "authorized" from the adopted rule and has substituted the language "intends to provide."

§11.901(10)(A)(iii) [§3.3703(a)(20)(A)(iii)]: A few commenters recommend the addition of the words "anesthesia units" after "component codes." One commenter seeks to include reference to "frequency parameters" and "procedure to diagnosis edits" and provides definitions for these terms, as well as "modifier indicators." Another commenter notes that the subclause lists some but not all types of bundling processes and recommends adding a reference to and a definition of "unit frequency limitations."

Agency Response: The department does not believe that the suggested language is necessary as it has changed the rule to require the provision of all applicable bundling processes. The basic requirement of the rule is to ensure that physicians and providers have sufficient information to determine the payment to be made in accordance with the contract, no matter on what basis the parties agree to determine payment.

§11.901(10) & (11)(B) [§3.3703(a)(20)(D), (a)(21)(B)]: Some commenters indicate that circumstances beyond a carrier's control might make it impossible to comply with the 60-day notice of changes in fees and claims processes, and request an exception for coding changes that are beyond the carrier's control, such as those prescribed by the Centers for Medicare and Medicaid Services (CMS) or the AMA. The commenter notes that CMS issues retroactive coding changes or provides insufficient lead time to meet the requirement. Other commenters believe that retroactive revisions should not be allowed and that mutual agreement between the carrier and physician or provider should be required for any amendments to be effective. Another commenter requests that this provision be changed to 30 days. Another commenter asked for an explanation of how the 60-day notice period in paragraph (D) reconciles with the 90-day compliance period in paragraph (F). Another commenter states that software is developed to check billings and to be responsive to changes in billing practices encountered over time. A 60-day notice period might prevent carriers from catching up to innovative changes in billing practices, which might prove unfair to carriers and cause health care costs to rise.

Agency Response: The department acknowledges the concerns regarding the timing of changes in coding and fee schedules but disagrees that the rule should be changed. Where parties have agreed to use source information outside the control of the carrier as the basis for the carrier's fee computation, the information the rule requires carriers to provide is the identity of the source and the procedure by which the physician or provider may readily access the source. A change to either of those items, or to any factor within the carrier's direct or indirect control, would trigger the 60-day notice requirement. Any change to the source information outside the control of the carrier, however, would not be a change to the carrier's claims payment policies or procedures or to the information required by this rule, and would not require 60 days notice under Article 3.70-3C, §3A(k) and 28 TAC 11.901(10)(D). However, if the carrier makes a change to a claim processing or payment procedure (such as changing the fee payment from 120% of Medicare to 110%), that would require a 60-day notice in order to be effective. Although the rule does not require a carrier to provide notice of changes made by an outside source, the parties are free to create such a duty by contract, or to agree on effective dates different from those set by the outside source. The department will continue to monitor this practice to determine if future rulemaking is warranted.

§11.901(10) and (11) [§3.3703(a)(20) and (21)]: Some commenters support alternative two as being more reasonable and in line with Attorney General Opinion No. JC-0502. The commenters assert that alternative one seeks information that goes beyond the scope of TDI's statutory authority and the attorney general's opinion. The commenters support the provision of information only on request, as proposed in alternative two, as consistent with their current procedures. Other commenters support TDI's efforts to promulgate rules which assist providers in determining whether reimbursement has been made in accordance with the contract.

Some commenters expressed disagreement with Attorney General Opinion No. JC-0502, concerning TDI's authority to promulgate this rule. The commenters believe that the proposal exceeds TDI's statutory authority.

Agency Response: The department disagrees. The Attorney General concluded that it is within TDI's authority to construe the prompt payment provisions of Arts. 3.70-3C Sec.3A (i) and 20A.18B(i) to promulgate rules to require disclosure of fee schedules and bundling and downcoding policies.

§11.901(10) [§3.3703(a)(20)] - Misuse of Information and Fraud: Some commenters assert that alternative one does not protect carriers from the potential of provider misuse of the disclosed information. The commenters believe that the proposal will result in an increase either in inflated provider charges or fraudulent billing activities by a few providers, causing a financial impact on the health care system. The commenters believe that disclosing coding guidelines to these particular providers will make it easier to submit fraudulent claims. A commenter asserts that disclosure of fee schedules and disclosure of claims review and fraud detection policies are two distinct issues, which should be addressed independently. Fee schedules should be disclosed, but the details of claims review and fraud detection processes should not be disclosed. To counter the possibility of the information being used for fraud, one commenter suggests that the carrier be allowed to provide only a summary description of the bundling and coding policies and, upon written request, an explanation of the methodology of the coding decision on an individual claim.

A commenter recognizes TDI's limited authority over physicians and providers and recommends adding a provision to allow carriers to include a contractual remedy for inappropriate disclosure of the information. Another commenter recommends stringent penalties to ensure that providers do not release proprietary fee schedules and coding guidelines because, without sanctions, there is nothing to prevent or discourage providers from improperly using or disclosing such information. Another commenter points out that neither alternative imposes a requirement on providers to maintain the information they receive from carriers as confidential. The commenter believes that confidentiality should be required, and that carriers should be granted some kind of recourse against providers who breach confidentiality.

Agency Response: The intent of the rule is to ensure that physicians and providers are able to determine what they should be paid in accordance with the contract. If a carrier suspects that fraud is occurring, it has an obligation to advise the department and other authorities so that action can be taken. Because the Insurance and Penal Codes contain specific provisions concerning fraud, the department declines to include language regarding penalties in this rule. The rule also does not prohibit a carrier from including additional remedies for inappropriate disclosure in its provider contracts.

The department disagrees that a provision mandating confidentiality of proprietary information is appropriate for this rule, which merely provides for copyrighted or other proprietary information to be supplied by an alternate means. It is the responsibility of those claiming copyright or other proprietary concerns to assert this interest to whomever receives the information and to employ confidentiality agreements or other methods to restrict the access to and use of their information. As such, any remedies for violation would also be a matter for the party seeking to protect the information.

§11.901(10)(A)(ii) [§3.3703(a)(20)(A)(ii)]: A commenter recommends deletion of clause (ii) concerning nonstandard codes since HIPAA requires deletion of such codes. Other commenters recommend that the rule reference HIPAA in connection with standard transactions and that language be included allowing the rule to change in accordance with changes in the law. A commenter agrees that if standard coding methodology is not being used, then disclosure may be needed. One commenter says the rule should either specify an inclusive list of adjudication methodologies to be addressed, or disallow nonstandard billing practices. A commenter notes that the terms HCPCS and ICD-9-CM codes are commonly understood, but should still be defined in the rule.

Agency Response: The department has combined subclauses (i) and (ii) and eliminated the term "nonstandard." This change requires disclosure of the coding methodology employed by the carrier and contains no requirement applicable to codes not in use, regardless of the reason. However, the carrier must provide any changes to information affecting payment under the contract. The department disagrees that commonly understood terms that are recognized in the industry should be defined in the rule.

§11.901(10)(A)(v) & (vi) [§3.3703(a)(20)]: A commenter states that the provisions could be interpreted to require more information than intended, including the disclosure of the entire claims processing manual, internal communications, changes in the claims processing system and other internal processes not related to claims payment. The commenter says this would be cumbersome and unnecessary and would disrupt on-going system improvement, innovation and updating. The commenter recommends limiting the requirement to disclosure of claims payment information. Another commenter suggests revising the requirements to focus on claims payment rather than claims processing. The commenter believes that disclosure of claims processing requirements is overly broad and would inundate physicians and providers with highly technical manuals that would be of little value in understanding reimbursement. The commenter suggests deleting the broad phrase "processing of claims" and instead concentrating on disclosure in the context of a claim adjudication inquiry.

Agency Response: The purpose of the rule is to assure the delivery of sufficient information for a skilled reasonable person to make a determination of the payment to be made under the contract. The department does not intend the rule to place an undue burden on carriers or to inundate preferred providers with unnecessary information. The department tailored the adopted rule to address only those aspects of claims processing that achieve this purpose.

§11.901(11) [§3.3703(a)(21)]: Some commenters recommend that alternative two define terms and require requests to be in writing to avoid disputes as to whether and when a request was made. Some commenters ask that the carrier be given 30 days from the date of its receipt of the written request to provide the information. If Internet access is not allowed, the commenter asks that the request for information be in writing to protect the carrier's proprietary information and validate the requestor's right to receive the information.

Agency Response: The department agrees with commenters' concerns that disputes regarding receipt of requests for the required information should be avoided. A physician or provider may submit a request by e-mail, facsimile or other reasonable and verifiable means in order to receive the required information. Because the department is adopting alternative one, definition of terms for alternative two is not necessary.

§11.901(10)(F) and (11)(E) [§3.3703(a)(20)(F) and (21)(E)] - Effective date: If alternative one is selected, some commenters recommend an extension of the 90-day time frame for compliance. Specifically, one commenter requests 180 days to comply, while another commenter suggests January 1, 2003. Some commenters request that compliance with alternative two be at least 90 days, with one commenter requesting 180 days, from the effective date of the rule to provide carriers sufficient time to revise contracts. On subparagraph (E), a commenter suggests that carriers be given 30 days from the effective date to bring contracts into compliance.

Agency Response: The department acknowledges the possibility that some carriers will need time to develop the procedures necessary to comply. Accordingly, the rule requires a carrier to provide the required information, in existing contracts, to the physician and provider on the later of the 90th day after the effective date of this rule or the 30th day after the date the carrier receives the physician's and provider's request. For contracts entered into or renewed after the rule takes effect, beginning on the 90th day after the effective date of the rule, carriers must provide the required information upon request contemporaneously with other contractual materials.

§11.901(11) [§3.3703(a)(21)]: A commenter believes that alternative two allows the physician or provider to request entire fee schedules, which will be costly to provide. The commenter asks that providers be limited to requesting fee schedules for the providers' specialty and a specific number of codes within that specialty. Another commenter asks that the carrier only have to provide the top 25 or 50 CPT codes, based on the provider's practice or specialty, but allow for written requests of any additional CPT codes. Another commenter suggests that alternative two would be more manageable if the ability to request information of the carrier was claim specific.

A commenter states that it would be extremely expensive to require carriers to give every physician and provider a specific summary of benefits tailored to that specific physician or specialty. The commenter believes it also would not be necessary, because each policy governs payments under the policy and it is only the amount of discount from the providers' fee schedules that determines the level of compensation.

Agency Response: The department does not intend the rule to place an undue burden on carriers or to inundate physicians and providers with unnecessary information. Based on comments, the department is adopting a modified version of alternative one, which requires that a carrier provide a fee schedule related only to the services reasonably expected to be provided under the physician's and provider's contract with the carrier. A carrier must also provide a toll-free number or electronic address to allow a physician and provider to access information regarding services not included in the fee schedule initially provided. The department acknowledges that there will be expenses involved in providing fee schedules to physicians and providers, and addressed this issue in the preamble to the proposed rule. However, in the adopted rule, the department has mitigated the expenses involved by allowing the carrier flexibility to provide the required information by alternative means and only upon request. It is the department's intent that physicians and providers receive sufficient information for a skilled reasonable person to determine the payment to be made in accordance with their contract. The department disagrees with the last portion of this comment. Due to the nature of the complaints received, the department believes that the availability of a fee schedule to physicians and providers is necessary.

§11.901(10)(A)(i)(II) [§3.3703(a)(20)(A)(i)(II)]: A commenter inquires whether carriers can use existing toll-free numbers.

Agency Response: Carriers may use an existing toll-free number.

§11.901(10)(A)(i)(II), (v) & (vi) [§3.3703(a)(20)(A)(i)(II), (v) & (vi)]: A commenter points out that certain factors are included in the proper payment of claims that do not include valuing the claims or correct coding of the claim. These factors include a medical director determining a claim is not medically necessary or a carrier identifying a pattern of fraudulent billing. The commenter notes that these type of factors are not included in the scope of the rule. A commenter contends that coding requirements are specific to diagnosis, procedure code, severity level, and treatment guidelines, while claims are adjudicated based on the interrelationship of multiple elements, and that compliance with the provision will be difficult. The commenter acknowledges that carriers can provide the name of the software and a summary of the coding guidelines to determine applicability but may not be able to relate each coding factor back to each fee schedule.

A commenter questions how updates to CPT codes and changes to internal systems or processes will be handled. The commenter contends that the requirement is too burdensome and will inhibit ongoing system updates.

Agency Response: It is the department's intent that physicians and providers receive sufficient information so that a skilled reasonable person can determine the payment to be made under the terms of the contract. The department recognizes that the commenter's examples of determining medical necessity and identifying fraudulent billing patterns, as well as other factors, may affect the actual amount of reimbursement, but these factors are outside the scope of this rule as well as the statute. The department believes that allowing the information to be distributed electronically and upon request addresses the concerns regarding any potential burden associated with changing the CPT codes or internal systems and processes.

§11.901(10)(A)(vii) [§3.3703(a)(11) & (20)(A)(vii)]: A commenter believes that the use of the phrase "including but not limited to" is ambiguous and requires carriers to guess about the possible existence of other laws that are not specifically cited. The commenter requests deletion of the phrase or the inclusion of the specific citation to all statutes and rules that TDI believes are applicable to the prompt payment of clean claims. Another commenter recommends deletion of clause (vii) as carriers are already required to comply with the provisions of Art. 20A.18B.

Agency Response: The department has deleted clause (vii) as unnecessary since the requirement is already in paragraph (7). A carrier is required to comply with all applicable laws and rules whether or not specified, including Art. 20A.18B. "Including" is a term of enlargement and not of limitation or exclusive enumeration, and the department has accordingly deleted the phrase "but not limited to."

§11.901(10)(B)(iii): A commenter suggests changing the last part of the clause to "...access the source as referenced by the health plan."

Agency Response: The department does not believe the addition of this language is necessary and declines to make the change. The provision already states that the contract must identify and explain the procedure by which the physician or provider can readily access the source.

§11.901(10)(A)(iii) [§3.3703(a)(20)(A)(iii)]: Some commenters want the rule to require carriers to inform the physician or provider of updates to their bundling processes. Another commenter asserts that downcoding of a clean claim is a violation of the prompt pay rules.

Agency Response: The statute as well as the rule require 60 days advance notice of amendments, revisions or substitutions of the required information. The department disagrees with the commenter that downcoding per se of a clean claim is a violation of the prompt pay rules.

§11.901(10)(B)(ii) and (iii) [§3.3703(a)(20)(B)(ii) and (iii)]: A commenter recommends that clauses (ii) and (iii) be combined into (ii). Two commenters recommend the removal of references to Medicaid or Medicare fee schedules because of the potential for confusion.

Agency Response: The department has changed the rule to permit the delivery of the information by any reasonable means upon request from the physician or provider. The department does not agree that the use of Medicaid and Medicare fee schedules as examples creates confusion as those schedules are common benchmarks for compensation in contracts between carriers and physicians or providers.

§11.901(10)(B) [§3.3703(a)(20)(B)]: A commenter suggests that if other documents are utilized to convey changes regarding reimbursement provisions, these documents need to be provided to the physician or provider at the time the contract is submitted for initial review rather than at the time of execution of the contract. Another commenter requests that the additional documents be provided at least 60 days before the contract is presented for execution.

Agency Response: Adopted alternative one provides for delivery of required information, including references to outside sources, upon request from the physician or provider. For contracts entered into or renewed on or after the effective date of these amendments, the carrier must provide the required information contemporaneously with other contractual materials. The department reminds commenters that any amendments, revisions or substitutions to the information are not effective unless the carrier provides at least 60 days written notice.

§11.901(10)(B)(iii) [§3.3703(a)(20)(B)(iii)]: A few commenters suggest that, along with HMOs, delegated networks, delegated entities and delegated third parties as defined by statute (HB 2828) should be referenced. Some other commenters prefer alternative two over alternative one, but see a fundamental flaw in that neither includes a network entity.

Agency Response: Since the rules apply to HMOs and PPOs, the rules also apply to any entity with which the HMO or PPO has contracted. Note, however, that a carrier remains responsible for compliance regarding a delegated function.

§11.901(10)(C) and (11)(D) [§3.3703(a)(20)(C), (a)(21)(D)]: Some commenters request that the references to copyright laws and licensing agreements be removed because they are inconsistent with HB 610 which provides for the disclosure of claims processing information. These commenters are concerned that a carrier will use these laws or agreements to avoid their disclosure obligations. In the alternative, if the copyright and licensing exclusions are maintained, a commenter requests deleting the words "reasonable" and "training," and make no other changes. The commenter also suggests that any licensing exclusions should only be effective for one year.

Agency Response: The department disagrees that references to copyrighted or other proprietary information should be deleted. The rule contains sufficient detail to mandate that any entity asserting a copyright or other similar interest must provide the degree of information necessary to inform a physician or provider about fee schedules and coding procedures. The rule does not, however, preclude carriers and physicians or providers from engaging in a dialogue concerning the adequacy of any particular piece of information furnished, and the department expects that parties will air and resolve their concerns without the department's involvement. Comments received indicate that some carriers are already providing this information without any problems of this nature. The words "reasonable" and "training," also contained in subparagraph (A), are useful in describing the required level of detail. It would not be appropriate to limit licensing exclusions to only one year, as copyright or other proprietary interests may not be so restricted.

§11.901(10)(C) and (11)(D) [§3.3703(a)(20)(C), (21)(D)]: Some commenters note that the provisions of §11.901(11) requiring the carrier to provide the name, edition, and model of software may not be sufficient to meet the requirements of the law. The commenters also note that there is no provision in either alternative for reasonable access to or availability of the software.

Some commenters believe that the skilled reasonable person standard conflicts with the portion of the section that requires a summary of the information where a licensing agreement prohibits disclosure of the claims editing software. These commenters note that a carrier could be out of compliance with the reasonable person standard by providing only summary information. A commenter believes that allowing carriers to provide a summary of the bundling and downcoding logic will not provide sufficient information to providers. Another commenter states that the rule does not sufficiently define the required level of detail for the summary a carrier may provide in lieu of violating copyright law or licensing agreements. This standard would make carriers guess as to how much detail is sufficient, and subject them to penalties if it is determined after the fact that the level of detail they provided was not enough.

Agency Response: The department appreciates the commenters' concern that the rule does not guarantee access to any particular software. The department also recognizes that some carriers are subject to licensing agreements. However, a carrier can reveal the function any computer program is intended to perform without violating a licensing agreement. Any other conclusion suggests that the carrier is ceding control of the claims payment process to its software vendor, which is neither likely nor acceptable. A summary is simply a presentation or collection of less than the entire material included in a particular category. Adopted alternative one establishes a standard that the information submitted to the physician and provider, whether or not in summary form, must suffice to enable a skilled reasonable person to determine the payment to be made according to the terms of the contract. A carrier providing this level of detail will be in compliance. The rule allows carriers flexibility to meet this requirement by utilizing means agreeable to both parties.

§11.1901(10)(D) and (11)(B) [§3.3703(a)(20)(D), (a)(21)(B)]: A commenter suggests defining "routine changes" that would not require the 60-day notice and "material changes" that would require the 60-day notice. According to the commenter, routine changes occur frequently and are accepted as the norm by physicians and providers. These changes typically have a minor impact on the physician or provider. On the other hand, material changes are intended to alter substantially the overall methodology or reimbursement level of the fee schedule.

A commenter objects that alternative two only requires the provision of notice for "material" changes without any guidance as to what such "material" changes may be.

Agency Response: The department has adopted alternative one, which does not contain the term "material changes." The standard in the rule is that any amendment, revision or substitution of the required information that could make a difference in the payment to be made under the contract is subject to the 60-day notice requirement in (D). However, as noted in response to a previous comment, any change to the source information outside the control of the carrier, such as an incremental change to a fee schedule or coding guideline, would not be a change to the carrier's claims payment policies or procedures or to the information required by this rule, and would not require 60 days notice under Article 3.70-3C, §3A(k) and 28 TAC §11.901(10)(D).

§11.901(10)(D) [§3.3703(a)(20)(D)]: Some commenters request inclusion in this subparagraph of a reference to policies and procedures, such as turning an edit off or on or adopting a new policy based on recent FDA approval of a procedure or equipment, as they may have a direct impact on claims payment.

Agency Response: To the extent that policies and procedures affect determination of the payment to be made under the contract, the rule requires carriers to provide this information. However, it is not within the scope of the rule as to whether particular services are covered under the health benefit plan.

§11.901(10)(F) [§3.3703(a)(20)(F), (a)(21)]: A commenter is concerned that the use of the phrase "these amendments" may be confusing and that some carriers may resist renewing or amending existing contracts to avoid disclosure of the required information. The commenter suggests that the language be changed to "this paragraph." Another commenter suggests that the first sentence be deleted to clarify that the requirement for disclosure applies to currently contracted physicians. A commenter requests that, if alternative two is adopted, the provisions of §11.901(10)(F) be included in the language of the rule so that the amendments will apply to ongoing contracts as well as contracts entered into after the effective date of the rule.

Agency Response: The rule applies to all carriers as of the effective date of the rule. Contracts entered into or renewed on or after the effective date of this rule must comply with the provisions of paragraph (10). HMOs operating under existing contracts must provide the required information to the physician or provider in accordance with subparagraph (F).

§11.901(10)(G)(i) [§3.3703(a)(20)(G)(i)]: Some commenters suggest that, along with the disclosures mentioned, physicians and providers should be allowed to disclose the information for purposes of legislative or regulatory change, civil actions, or other legal remedies and purposes. Another commenter believes that this subparagraph improperly limits the physician's use of the information to something less than is allowed by law.

Agency Response: The department disagrees. The commenters' concerns are outside the scope of this rule. If, for example, someone were required to produce this information as part of a civil action, other considerations, such as the contract between the parties, private confidentiality agreements, contractual or civil penalties, would govern disclosure of this information for purposes other than determining the payment to be made under the contract.

§11.901(10)(G)(i) & (ii) and (11)(C) [§3.3703(a)(20)(G) and (21)(C)]: Some commenters believe that the clauses are too broad and may allow the sharing of fee schedules with persons that may not need or have a right to the information, as well as the disclosure of information that should otherwise be treated as confidential. The commenters suggest deleting the phrase "or other business operations" from the clauses. A few commenters suggest limiting the use and disclosure to entities that directly support the provider's billing process. A few commenters request that the department amend both alternatives to allow carriers to immediately terminate contracts with providers who fail to comply with the restrictions on disclosure. Another commenter suggests that alternative two include the specific prohibition from improper disclosure found in alternative one.

A commenter is concerned that as physicians and providers have access to fee schedules, the carriers will lose the ability to negotiate provider discounts for members. The commenter is concerned that this will result in higher premiums, and increase the number of uninsureds as some employers elect to drop coverage due to cost. The commenter says the rule only benefits physicians and providers, not the consumer.

Agency Response: The department agrees that "other business operations" is overly broad and has deleted the phrase. Regarding the potential effect on discounts, the department understands that implementation of the statute will likely result in physicians and providers receiving more information during the contracting process than they currently do; however, the statute requires full disclosure of a carrier's claims payment policies and procedures. The department declines to include language regarding penalties for improper disclosure, but notes that nothing in the rule prohibits a carrier from negotiating a contractual remedy.

§11.901(10) & (11) [§3.3703(a)(20) and (21)] - Delegation Issues: A commenter suggests changing the paragraph to only require disclosure of information that is actually governed by the contract since a PPO network would not be able to disclose the payment processes of carriers as they are not privy to that information. One commenter believes that these subsections are premised on the idea that the insurance company determines the fee schedules and fee guidelines. The commenter considers this reasoning flawed and argues that the typical PPO contract is based on fee schedules maintained by the healthcare provider. A commenter does not believe that a PPO or a network entity can provide information that would meet the reasonable person standard set forth in paragraph (20). The commenter explains that because of such factors as covered and non-covered services, deductibles, co-payments, co-insurance, amounts paid for other coverages, it is not possible to provide sufficient information in the contract to allow for all contingencies.

Some commenters offered a reminder that some small- to medium-sized carriers do not contract directly with physicians and healthcare providers, but rather utilize network providers. Thus, the commenter considers it an unreasonable burden to impose on carriers to furnish the fee schedules. The health care provider should be required to furnish the fee schedules to the insurer. Further, the commenter urges that the insurers should only be required to furnish fee schedules where the insurer maintains the schedule and requires the fee schedules to be used for determining compensation.

Agency Response: Although comments on this delegation issue were only received in reference to §3.3703, the department recognizes that this issue is applicable to §11.901 and HMOs. The department understands there are a variety of contractual arrangements, some involving the participation of delegated entities and delegated third parties who have assumed the responsibility for claims payment. While an HMO may delegate to a delegated entity or delegated third party the duty to provide reimbursement information, the HMO remains ultimately responsible for ensuring that its contracted delegated entities provide the information set out in this rule to their contracting physicians and providers. The factors referred to in the comment are outside the scope of this rule, as noted in Section 3 of this adoption order.

For: Plastic Eye Surgery Associates, Austin Anesthesiology Group of Texas Physician Providers, HealthSouth Corporation, Metropolitan Surgical Specialties, and various physicians.

For with changes: Texas Medical Association, United Healthcare of Texas, Inc., Texas Hospital Association, Collin/Fannin County Medical Society, M.D. Anderson Cancer Center, Women Partners in OB/GYN, Dallas Orthopaedic Clinic Associated, Harris County Medical Society, Northeast OB/GYN Associates, P.L.L.C., Bexar County Medical Society, Office of Public Insurance Counsel, Seven Oaks Women's Center, Southwest Physician Associates, Tarrant County Medical Society, and American National Insurance Company.

Against: Texas Association of Health Plans, Unicare Life and Health Insurance Company, Unicare Health Plans of Texas, Inc., Unicare Health Insurance Company of Texas, Aetna, Texas Association of Business, HealthSmart, Texas Association of Preferred Provider Organizations, Texas Association of Life and Health Insurers, First Health Group Corp., Alliance of American Insurers, American Association of Health Plans, Golden Rule Insurance Company, Great-West Life & Annuity Insurance Company and One Health Plan of Texas, Humana, Inc., Insurance Council of Texas, Principal Financial Group, and Scott & White Health Plan.

The amendments are adopted under the Insurance Code Article 20A.18B and §36.001. Article 20A.18B(o) gives the Commissioner the authority to adopt rules as necessary to implement Article 20A.18B. Article 20A.18B(i) provides that an HMO shall make available to a contracting physician or provider its claims processing policies and procedures. The Commissioner's authority to adopt rules relating to the disclosure of claims payment processes such as fee schedules, bundling processes, and downcoding policies was clarified by Attorney General Opinion No. JC-0502. The opinion states that the Texas Department of Insurance is authorized to promulgate rules to require preferred provider benefit plans and HMOs to disclose their fee schedules, bundling processes, and downcoding policies. Section 36.001 provides that the Commissioner of Insurance may adopt rules to execute the duties and functions of the Texas Department of Insurance as authorized by statute.

§11.901.Required Provisions.

Physician and provider contracts and arrangements shall include the following provisions:

(1) regarding hold harmless clause as described in the Insurance Code Article 20A.18A(g) and §11.1102 of this title (relating to Hold Harmless Clause);

(2) regarding retaliation as described in the Insurance Code Article 20A.14(k);

(3) regarding continuity of treatment, if applicable, as described in the Insurance Code Article 20A.18(A)(c);

(4) regarding written notification of termination to a physician or provider at least 90 days prior to the effective date of the termination of the physician or provider, except in the case of imminent harm to patient health, action against license to practice, or fraud pursuant to Insurance Code Article 20A.18A(b), in which case termination may be immediate. Upon written notification of termination, a physician or provider may seek review of the termination within a period not to exceed 60 days, pursuant to the procedure set forth in the Insurance Code Article 20A.18A(b). The HMO must provide notification of the termination of a physician or provider to its enrollees receiving care from the provider being terminated at least 30 days before the effective date of the termination. Notification of termination of a physician or provider to enrollees for reasons related to imminent harm may be given to enrollees immediately;

(5) regarding posting of complaints notice in physician/provider offices as described in the Insurance Code Article 20A.18A(i). A representative notice that complies with this requirement may be obtained from the Texas Department of Insurance, HMO/UR/QA Group, P.O. Box 149104, Austin, Texas 78714-9104;

(6) regarding indemnification of the HMO as described in the Insurance Code Article 20A.18A(f);

(7) regarding prompt payment of claims as described in the Insurance Code Article 20A.09(j) and all applicable statutes and rules pertaining to prompt payment of clean claims, including Insurance Code Article 20A.18B (Prompt Payment of Physician and Providers) and §§21.2801-21.2820 of this title (relating to Submission of Clean Claims) with respect to the payment to the physician or provider for covered services that are rendered to enrollees;

(8) regarding capitation, if applicable, as described in the Insurance Code Article 20A.18A(e);

(9) regarding selection of a primary physician or provider, if applicable, as described in the Insurance Code Article 20A.18A(e); and

(10) entitling the physician or provider upon request to all information necessary to determine that the physician or provider is being compensated in accordance with the contract. A physician or provider may make the request for information by any reasonable and verifiable means. The information must include a level of detail sufficient to enable a reasonable person with sufficient training, experience and competence in claims processing to determine the payment to be made according to the terms of the contract for covered services that are rendered to enrollees. The HMO may provide the required information by any reasonable method through which the physician or provider can access the information, including e-mail, computer disks, paper or access to an electronic database. Amendments, revisions or substitutions of any information provided pursuant to this paragraph must be made in accordance with subparagraph (D) of this paragraph. The HMO shall provide the fee schedules and other required information by the later of the 90th day after the effective date of this paragraph or the 30th day after the date the HMO receives the physician's or provider's request.

(A) This information must include a physician-specific or provider-specific summary and explanation of all payment and reimbursement methodologies that will be used to pay claims submitted by a physician or provider. At a minimum, the information must include:

(i) a fee schedule, including, if applicable, CPT, HCPCS, ICD-9-CM codes and modifiers:

(I) by which all claims for covered services submitted by or on behalf of the contracting physician or provider will be calculated and paid; or

(II) that pertains to the range of health care services reasonably expected to be delivered under the contract by that contracting physician or provider on a routine basis along with a toll-free number or electronic address through which the contracting physician or provider may request the fee schedules applicable to any covered services that the physician or provider intends to provide to an enrollee and any other information required by this paragraph, that pertains to the service for which the fee schedule is being requested if that information has not previously been provided to the physician or provider;

(ii) all applicable coding methodologies;

(iii) all applicable bundling processes;

(iv) all applicable downcoding policies;

(v) a description of any other applicable policy or procedure the HMO may use that affects the payment of specific claims submitted by or on behalf of the contracting physician or provider, including recoupment; and

(vi) any addenda, schedules, exhibits or policies used by the HMO in carrying out the payment of claims submitted by or on behalf of the contracting physician or provider that are necessary to provide a reasonable understanding of the information provided pursuant to this paragraph.

(B) In the case of a reference to source information as the basis for fee computation that is outside the control of the HMO, such as state Medicaid or federal Medicare fee schedules, the information provided by the HMO shall clearly identify the source and explain the procedure by which the physician or provider may readily access the source electronically, telephonically, or as otherwise agreed to by the parties.

(C) Nothing in this paragraph shall be construed to require an HMO to provide specific information that would violate any applicable copyright law or licensing agreement. However, the HMO must supply, in lieu of any information withheld on the basis of copyright law or licensing agreement, a summary of the information that will allow a reasonable person with sufficient training, experience and competence in claims processing to determine the payment to be made according to the terms of the contract for covered services that are rendered to enrollees as required by subparagraph (A) of this paragraph.

(D) No amendment, revision, or substitution of any of the claims payment procedures or any of the information required to be provided by this paragraph shall be effective as to the contracting physician or provider, unless the HMO provides at least 60 calendar days written notice to the contracting physician or provider identifying with specificity the amendment, revision or substitution. Where a contract specifies mutual agreement of the parties as the sole mechanism for requiring amendment, revision or substitution of the information required by this paragraph, the written notice specified in this section does not supersede the requirement for mutual agreement.

(E) Failure to comply with this paragraph constitutes a violation of Insurance Code Chapter 20A (Texas Health Maintenance Organization Act).

(F) This paragraph applies to all contracts entered into or renewed on or after the effective date of this paragraph. Upon receipt of a request, the HMO must provide the information required by subparagraphs (A) - (D) of this paragraph:

(i) for contracts entered into or renewed on or after the effective date of this paragraph, to the physician or provider by the later of the 90th day after the effective date of this paragraph or contemporaneously with other contractual materials; or

(ii) for an existing contract that does not contain the terms set forth in this paragraph, to the contracting physician or provider by the later of the 90th day after the effective date of this paragraph or the 30th day after the date the insurer receives the contracting physician's or provider's request.

(G) A physician or provider that receives information under this paragraph:

(i) may not use or disclose the information for any purpose other than the physician's or provider's practice management and billing activities;

(ii) may not use this information to knowingly submit a claim for payment that does not accurately represent the level, type or amount of services that were actually provided to an enrollee or to misrepresent any aspect of the services; and

(iii) may not rely upon information provided pursuant to this paragraph about a service as a verification that an enrollee is covered for that service under the terms of the enrollee's 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 September 18, 2002.

TRD-200206120

Lynda Nesenholtz

General Counsel and Chief Clerk

Texas Department of Insurance

Effective date: October 8, 2002

Proposal publication date: June 14, 2002

For further information, please call: (512) 463-6327


Part 2. TEXAS WORKERS' COMPENSATION COMMISSION

Chapter 109. WORKERS' COMPENSATION COVERAGE FOR STATE EMPLOYEES

28 TAC §109.1

The Texas Workers' Compensation Commission (the commission) adopts amendments to §109.1, concerning State Agencies: General Provisions, without changes to the proposed text published in the August 9, 2002, issue of the Texas Register (27 TexReg 7040).

As required by the Government Code §2001.033(1), the commission's reasoned justification for this rule is set out in this order, which includes the preamble, which in turn includes the rule. This preamble contains a summary of the factual basis of the rule, a summary of comments received from interested parties, names of those groups and associations who commented and whether they were for or against adoption of the rule, and if the commission disagrees, the reasons why the commission disagrees with some of the comments and proposals.

No changes were made to the rule as proposed.

The amendments establish the state agency that is responsible for the administration of the government employees workers' compensation insurance and the state risk management programs. Texas Labor Code §412.001 establishes the State Office of Risk Management (SORM) to administer these programs while concurrently removing them from the Attorney General's Office and the commission, respectively.

Subsection (b) replaces reference to "the Workers' Compensation Division of the Attorney General's Office" with "the State Office of Risk Management." Subsection (c) was deleted and replaced with language requiring each state agency to provide to the commission a single administrative address for the purpose of administering workers' compensation claims, in the form and manner prescribed by the commission.

No comments were received regarding the proposed amendments to §109.1.

The amendments are adopted under the Texas Labor Code §402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code, §412.011, which establishes the Office of Risk Management as the administrator of insurance services obtained by state agencies, including the government employees workers' compensation insurance program and the state risk management programs; the Texas Labor Code, §501.001, which contains definitions of terms used in Chapter 501; the Texas Labor Code §501.002, which lists the chapters and sections of the Texas Labor Code which are applicable to state agencies and establishes each individual state agency as the employer for workers' compensation purposes; the Texas Labor Code, §501.021, which established workers' compensation coverage for state employees; the Texas Labor Code, §501.023, which establishes the state as a self-insuring entity for compensable injuries that occurred prior to September 1, 1997; and the Texas Labor Code, §501.024, which sets out the exclusions from coverage.

The amendments are adopted under: the Texas Labor Code §§402.061, 412.011, 501.001, 501.002, 501.021, 501.023, and 501.024.

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 September 19, 2002.

TRD-200206137

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Effective date: October 9, 2002

Proposal publication date: August 9, 2002

For further information, please call: (512) 804-4287


Chapter 164. HAZARDOUS EMPLOYER PROGRAM

28 TAC §164.9

The Texas Workers' Compensation Commission (the commission) adopts an amendment to §164.9 without changes to the proposed text as published in the August 9, 2002, issue of the Texas Register (27 TexReg 7044).

As required by the Government Code §2001.033(1), the commission's reasoned justification for this rule is set out in this order which includes the preamble, which in turn includes the rule. This preamble contains a summary of the factual basis of the rule, a summary of comments received from interested parties, names of those groups and associations who commented and whether they were for or against adoption of the rule, and if the commission disagrees, the reasons why the commission disagrees with some of the comments and proposals.

No changes were made to the rule as proposed.

Subsection (e) previously required approved professional sources to attend an update seminar prior to December 31 of each year. This requirement was instituted during a period of rapid change in the hazardous employer program. Since the program has not undergone substantive changes for several years, the "update seminar" has become more refresher training than presentation of new information.

After changes to Chapter 164 rules went into effect in January 1999, private employers were no longer required to obtain a safety consultation from an approved professional source. This drastically reduced the number of consultations required under the program and, thus, the amount of work for approved professional sources. Many approved professional sources live outside of Texas and must travel to the update seminars each year to maintain their designation.

The adopted change relaxes a requirement on approved professional sources that has become unnecessarily stringent. In addition, the change allows approved professional sources to obtain required training on the Internet when this becomes available.

Comments supporting the proposed amendment to §164.9 were received from the following group: Texas Mutual Insurance Company.

Summaries of the comments and commission responses are as follows:

Comment: Commenter supported the rule amendment as being less cumbersome to all parties. The commenter further supported the proposed language regarding Internet based training.

Response: The commission agrees.

The amended rule is adopted pursuant to the Texas Labor Code §402.061 which requires the commission to adopt rules necessary for the implementation and enforcement of the Texas Workers Compensation Act, the Texas Labor Code §§411.041 - 411.068, which require the commission to identify hazardous employers and develop, implement, and enforce accident prevention programs; and Texas Insurance Code, Article 576-3, Section 10, which authorizes and sets out the provisions for the Texas Mutual Insurance Company.

This amendment is adopted under Texas Labor Code §402.061 and §§411.041 - 411.068, and Texas Insurance Code, Article 5.76-3, Section 10.

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 September 19, 2002.

TRD-200206138

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Effective date: October 9, 2002

Proposal publication date: August 9, 2002

For further information, please call: (512) 804-4287