28 TAC §21.2602, §21.2604
The Texas Department of Insurance (the department) proposes
amendments to §21.2602 and §21.2604 to clarify that all requirements
of 28 TAC, Chapter 21, Subchapter R (relating to Diabetes) (Subchapter R)
apply to health plans provided by risk pools created under Chapter 172, Local
Government Code (risk pools). Subchapter R was adopted in 1999 pursuant to
Insurance Code art. 21.53D (art. 21.53D), which directs the Commissioner of
Insurance (the commissioner), in consultation with the Texas Diabetes Council
(TDC), to adopt by rule minimum standards for benefits provided to enrollees
with diabetes. Subchapter R, as originally adopted, excluded risk pools from
the requirement that health plans that provide benefits for the treatment
of diabetes and associated conditions must provide coverage for diabetes equipment,
supplies and self-management training programs. Excluding risk pools from
providing these coverages does not conform to the applicable statutory mandate
and is inconsistent with legislative intent. This proposal resolves that inconsistency.
The general rule, as established by Local Government Code §172.014,
is that risk pools are not subject to the jurisdiction of the department.
However, the Legislature expressly included risk pools in the scope statement
of art. 21.53D. In comments to rule amendments proposed in the January 10,
2003, issue of the
Texas Register
(28 TexReg
430), pertinent parts of which the department is withdrawing by a notice in
this issue, a commenter took the position that risk pools cannot be made subject
to rules adopted by the commissioner pursuant to art. 21.53D that impose requirements
that coverage be provided for diabetes equipment, supplies and self-management
training.
In support of this assertion, the commenter pointed to art. 21.53G, a separate
statute, that applies to diabetes equipment, supplies and services. The Legislature
did not expressly include risk pools in that mandate, as was done in art.
21.53D. Thus, the commenter concluded that risk pools are subject to rules
adopted under art. 21.53D, but not to any part of those rules that require
coverage for diabetes equipment, supplies and self-management training.
The department has reviewed the legislative history for arts. 21.53D and
21.53G, and believes that it was the manifest intent of the legislature to
include risk pools in all of the requirements established pursuant to art.
21.53D. Articles 21.53D and 21.53G were both passed by Texas’ 75th Legislature
in 1997, as SB 162 and SB 163, respectively.
The bill analyses for both bills emphasized that many Texans had diabetes,
and that diabetes-related costs for Texans totaled billions of dollars. The
bill analysis for SB 163 pointed out that studies confirmed that training,
supplies and equipment necessary for diabetic self-management save money and
human suffering by reducing hospital admissions and lowering the risk of complications
from diabetes. The bill analysis for SB 162 highlighted a trial program in
Maryland that promoted nutrition counseling, case management and structured
outpatient diabetes education programs. The Maryland program resulted in a
40 percent decreased risk of hospital admission for enrollees the first year,
and a 50 percent reduction the second year. The bill analysis for SB 163 pointed
out that the American Diabetes Association had found that lack of reimbursement
was the most significant impediment to the development of diabetes outpatient
education programs.
SB 162 directed the Health and Human Services Commission (HHSC) to develop
a Texas Diabetes Care Pilot Program. The program was to provide continuous
care including preventive services such as structured outpatient diabetes
education, nutrition counseling and case management. SB 162 directed the HHSC,
in developing the program, to take into consideration what was done in the
Maryland program noted above. Pursuant to SB 162, the Texas Diabetes Council
administered the Texas Diabetes Care Pilot Program under the direction of
the HHSC. At the same time, pursuant to SB 162, the TDC worked with the Commissioner
of Insurance to develop rules that established minimum standards for benefits
to be provided to persons with diabetes who were enrollees of benefit plans
identified in art. 21.53D.
It is the department’s position that art. 21.53D instructs the commissioner
to adopt rules that set standards for the full spectrum of diabetes treatment
activities. The legislative histories for SB 162 and SB 163 both lead to the
conclusion that rules adopted pursuant to art. 21.53D must address preventive
care, and that such preventive care must include, at a minimum, equipment,
supplies and self-management training. An examination of the TDC’s recommendations
for minimum standards for diabetes treatment, found at http://www.tdh.state.tx.us/diabetes/min.htm,
reinforces this conclusion. In these minimum standards, the TDC has identified
certain care services and monitoring steps that providers need to take with
diabetes patients to meet treatment goals and targets in order to minimize
costly and deleterious complications. Achieving these goals and targets would
be impossible without the coverage for diabetes equipment, supplies and self-management
training that Subchapter R requires. Additionally, it should be noted that
the legislature enacted SB 162 later than SB 163. SB 163 was signed in both
the House and the Senate on April 29, 1997 and sent to the Governor on April
30, 1997. It was signed by the Governor on May 9, 1997.
SB 162 was passed by the Senate and engrossed on March 10, 1997. The House
amended SB 162 and passed it on May 24, 1997. The Senate concurred in the
House amendments on May 28, 1997. SB 162 was signed by the Governor on June
20, 1997.
Finally, in passing SB 162, the legislature made a specific statement about
the applicability of art. 21.53D to risk pools, but made no such specific
statement in SB 163. In fact, SB 163 did not address the issue of the applicability
of art. 21.53G to risk pools at all. SB 163, as well as its legislative history,
are silent on the question of making art. 21.53G applicable to risk pools.
It is only because of the language in Local Government Code §172.014
that a reconciliation of the intent of SB 162 and SB 163 is necessary.
Rather than suggesting an intent to include risk pools in the scope of
art. 21.53D for only limited purposes, the history gives the clear message
that the legislature’s manifest intent was to provide persons covered
by risk pools (persons working for cities and counties) with the same benefits
as everyone else covered by health plans subject to art. 21.53D.
Because the legislature enacted art. 21.53D later than art. 21.53G, art.
21.53D prevails. Thus, this proposal treats risk pools the same as all other
benefit plans that are subject to Subchapter R. This includes the requirement
that the benefit plans provide coverage for diabetes equipment, supplies and
self-management training in accordance with the standards in these rules.
The fact that art. 21.53D addressed its applicability to risk pools more specifically
than did art. 21.53G buttresses this conclusion.
Additionally, this proposal includes an amendment to §21.2602 to delete
unnecessary language and an amendment to §21.2604 to correct a citation.
Kim Stokes, Senior Associate Commissioner, Life, Health and Licensing,
has determined that for each year of the first five years the proposed sections
will be in effect, there will be no fiscal impact to state and local governments
as a result of the enforcement or administration of the rule. There will be
no measurable effect on local employment or the local economy as a result
of the proposal. Any economic costs to local governments required to comply
with these amendments are the result of the legislative enactment of SB 162
in 1997.
The original adoption of this chapter in 1999 has resulted in delaying
the experience of those costs for risk pools until these proposed amendments
become effective. Thus, if these proposals are adopted, risk pools may experience
costs related to providing coverage for diabetes equipment, supplies and self-management
training that they have not experienced since the original adoption of Subchapter
R. However, those costs are the direct result of the passage of SB 162 in
1997.
Ms. Stokes has determined that for each year of the first five years the
proposed amendments are in effect, the public benefits anticipated as a result
of the proposed amendments will be the clarification of the applicability
of certain provisions to health benefits provided by a risk pool, and the
provision of coverage for equipment, supplies and self-management training
for risk pool enrollees that have diabetes. Ms. Stokes also has determined
that any economic costs to entities required to comply with these amendments,
as well as any costs to a covered entity qualifying as a small or micro business
under Government Code §2006.001, for each year of the first five years
the proposed amendments will be in effect, are the result of the legislative
enactment of SB 162 in 1997, and not as a result of the adoption, enforcement,
or administration of the proposed amendments. The total cost to a covered
entity would not vary between the smallest and largest businesses. Therefore,
it is the department’s position that the adoption of these proposed
amendments will have no adverse economic effect on small businesses or micro-businesses.
Regardless of the fiscal effect, the department does not believe it is either
legal or feasible to exempt small businesses or micro-businesses from the
requirements of these proposed amendments. To do so would allow differentiation
in the provision of diabetes self-management training or coverage for diabetes
self-management training between small business health carriers compared to
large health carriers.
To be considered, written comments on the proposal must be submitted no
later than 5:00 p.m. on August 18, 2003 to Gene C. Jarmon, General Counsel
and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P. O. Box
149104, Austin, Texas 78714-9104. An additional copy of the comment must be
simultaneously submitted to Bill Bingham, Deputy Commissioner for Regulatory
Matters, Life, Health and Licensing Division, Mail Code 107-2A, Texas Department
of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. A request for a public
hearing should be submitted separately to the Office of the Chief Clerk.
The amendments are proposed under the Insurance Code Articles
21.53G and 21.53D, and §36.001. Article 21.53G determines and defines
the component or components of self-management training and provides that
the commissioner shall adopt rules as necessary for the implementation of
the article. Article 21.53D §3 provides that the commissioner shall by
rule adopt minimum standards for benefits to enrollees with diabetes and that
each health care benefit plan shall provide benefits for the care required
by the minimum standards. Section 36.001 provides that the Commissioner of
Insurance may adopt rules necessary and appropriate to implement the powers
and duties of the Texas Department of Insurance.
The following articles are affected by this proposal: Insurance Code Articles
21.53G and 21.53D
§21.2602.Required Benefits for Persons with Diabetes.
(a) - (b)
(No change.)
(c)
Health benefits plans delivered, issued for delivery, or
renewed on or after January 1, 1998, by an entity other than an HMO, which
provide coverage limited to hospitalization expenses, shall provide coverage
to each insured for diabetes equipment, diabetes supplies, and diabetes self-management
training programs, in accordance with
§§21.2603, 21.2605
[
§21.2603 of this title, §21.2605 of this title,
] and
21.2606
[
§21.2606
] of this title, during hospitalization
of the insured.
(d)
(No change.)
§21.2604.Minimum Standards for Benefits for Persons with Diabetes, Requirement for Periodic Assessment of Physician and Organizational Compliance.
(a)
Health benefit plans provided by HMOs shall provide coverage
for the services in paragraphs (1) through (7) of this subsection and shall
contract with providers that agree to comply with the minimum practice standards
outlined in subsection (b) of this section. Services to be covered include:
(1) - (5)
(No change.)
(6)
diabetes equipment and supplies in accordance with §21.2605
of this title (relating to Diabetes Equipment and Supplies)[
, except
notwithstanding §172.014, Local Government Code, or any other law, this
subsection does not apply to health benefits provided by a risk pool created
under Chapter 172, Local Government Code
]; and
(7)
diabetes self-management training, in accordance with subsection
(b)(1)(A)(iii)
[
(b)(1)(ii)
] of this section
and
[
,
] §21.2606 of this title (relating to Diabetes Self-Management
Training) [
or §21.2607 of this title (relating to Accessibility
and Availability of Diabetes Self-Management Training Prior to January 1,
2002), except, notwithstanding §172.014, Local Government Code, or any
other law, this subsection does not apply to health benefits provided by a
risk pool created under Chapter 172, Local Government Code
];
(b) - (c)
(No change.)
(d)
Health benefit plans provided by entities other than HMOs
shall provide coverage at a minimum for:
(1) - (5)
(No change.)
(6)
diabetes equipment and supplies in accordance with §21.2605
of this title[
, except notwithstanding §172.014, Local Government
Code, or any other law, this subsection does not apply to health benefits
provided by a risk pool created under Chapter 172, Local Government Code
];and
(7)
diabetes self-management training in accordance with §21.2606
of this title [
or §21.2607 of this title, except, notwithstanding §172.014,
Local Government Code, or any other law, this subsection does not apply to
health benefits provided by a risk pool created under Chapter 172, Local Government
Code
].
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on July 7, 2003.
TRD-200304105
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: August 17, 2003
For further information, please call: (512) 463-6327