• Increase Text Icon
  • Decrease Text Icon
  • Email Icon
  • Print this page
You are here: Home . rules . 2002 . women
Archived File – for Reference Use.
Links and contact information may be outdated.

SUBCHAPTER Y. UNFAIR DISCRIMINATION IN COMPENSATION FOR WOMEN'S HEALTH CARE 28 TAC §§ 21.3301 - 21.3305

The Texas Department of Insurance proposes new Subchapter Y, §§21.3301-21.3305, concerning discrimination in compensation to physicians and providers of women's health care services. These new sections provide definitions and procedures necessary to implement Senate Bill (SB) 8, enacted by the 77th Legislature, which added Texas Insurance Code Article 21.53N. SB 8 was enacted to ensure that physicians and providers of women's reproductive health or reproductive oncology services receive compensation not less than that received by physicians and providers who provide health care services exclusively to men or to the general population. In accordance with SB 8, the department has determined that there are no rules in the Texas Administrative Code contrary to the provisions of SB 8. Consequently, the department is not proposing repeal of any rules.

The proposed rules clarify that covered services for reproductive health or reproductive oncology services for women must be reimbursed at an amount not less than the annual average compensation per hour or unit as would be paid by the same issuer for the same or comparable services provided exclusively to men or to the general population. In order for the department to ascertain whether an issuer is unfairly discriminating in physician or provider reimbursement rates, the department has outlined in its proposed rule specific criteria which must accompany a complaint asserting a violation of Article 21.53N or proposed §§21.3301-21.3305. The department recognizes that reimbursements to physicians and providers may vary depending on factors that do not involve unfair discrimination. The proposed rules provide the minimum information and documentation the department must receive in order to begin the investigation of alleged unfair discrimination in reimbursements.

Proposed §21.3301 clarifies that the purpose of the proposed new subchapter is to remedy unequal reimbursements to physicians and providers of women's reproductive health or reproductive oncology services. Proposed new §21.3302 sets out definitions of terms used in the subchapter. Proposed §21.3303 describes the types of issuers and health benefit plans to which the new sections apply and clarifies when they apply. Proposed §21.3304 clarifies that issuers must reimburse physicians and providers for covered reproductive health or reproductive oncology services not less than the amounts paid to physicians and providers who provide the same or comparable covered services exclusively to men or to the general population. In addition, the section provides that relative value units (RVUs) will be considered, as well as other submitted reimbursement methodologies, in determining whether an issuer is providing appropriate reimbursement. Proposed §21.3305 describes the types of information and documentation that must be submitted to the department in order to file a complaint against an issuer for an alleged violation of Article 21.53N §3. The section also describes the department's responsibilities within 10 days of its receipt of a complaint, and clarifies when a complaint will be considered "filed" and when the 120-day time period in Article 21.53N §4(c) commences. In addition, the section describes actions that will be taken subsequent to receipt of a complaint containing incomplete information and actions that will be taken if the department believes a violation of Article 21.53N has occurred.

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.

Ms. Stokes has determined that for each year of the first five years the sections are in effect, the public benefits anticipated as a result of the proposed sections will be the equalization of reimbursements to physicians and providers of women's health care services. Ms. Stokes has determined that any economic cost to entities required to comply with these new sections, as well as any costs to a covered entity qualifying as a small business under Government Code §2006.001, for each year of the first five years the proposed new sections will be in effect are the result of the legislative enactment of Insurance Code Article 21.53N, and not as a result of the adoption, enforcement, or administration of the proposed new sections. The total cost to a covered entity is not dependent upon the size of the entity, but rather is dependent upon whether the entity provides coverage for reproductive health or reproductive oncology services provided to women. Therefore, it is the department´s position that the adoption of these proposed new sections will have no adverse economic effect on small businesses or micro-businesses. Because of this and because the intent of SB 8 is to prevent unfair discrimination in compensation for women's health care services, it is neither legal nor feasible to exempt small business or micro-business from the requirements of these proposed sections.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on March 22, 2002 to Lynda H. Nesenholtz, 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 Diane Moellenberg, Chief Director of Regulatory Development, Life, Health and Licensing, 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 new sections are proposed under the Insurance Code, Article 21.53N and §36.001. New Article 21.53N, enacted pursuant to Senate Bill 8, authorizes the commissioner to adopt rules to implement the statute. Section 36.001 provides that the Commissioner of Insurance may adopt rules to execute the duties and functions of the Texas Department of Insurance only as authorized by statute.

The following article is affected by this proposal:

Insurance Code, Article 21.53N.

§21.3301. Purpose. The purpose of this subchapter is to remedy unequal reimbursements to physicians and providers by requiring issuers to pay physicians and providers of women´s health care services the same or similar amounts for covered reproductive health or reproductive oncology services as are paid to physicians and providers who provide covered services exclusively to men or to the general population.

§21.3302. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Issuer ­ Those entities that offer a health benefit plan as identified in Insurance Code Article 21.53N §2(1-8).

(2) Physician ­ A person licensed by the Texas State Board of Medical Examiners to practice medicine and surgery in this state.

(3) Provider ­ A hospital, nurse practitioner, registered nurse, physician assistant, home health aide, nurse midwife, surgery center, or other outpatient care center.

§21.3303. Applicability. This subchapter applies to issuers that provide coverage for reproductive health or reproductive oncology services for women and applies to health benefit plans as described in Insurance Code Article 21.53N §2 that are delivered, issued for delivery, or renewed on or after January 1, 2002.

§21.3304. Reimbursements.

(a) An issuer that covers reproductive health or reproductive oncology services provided for women must reimburse physicians or providers at an amount not less than the annual average compensation per hour or unit as would be paid in the service area for the same or comparable covered medical, surgical, hospital, pharmaceutical, nursing or other services, as applicable, provided exclusively to men or to the general population.

(b) In determining appropriate reimbursement for reproductive health or reproductive oncology services, the relative value units (RVUs) published by the Centers for Medicare & Medicaid Services (CMS) shall be considered, in addition to other submitted reimbursement methodologies, for comparing reimbursements of the same or comparable covered services offered exclusively to men or to the general population.

§21.3305. Complaints.

(a) A complaint against an issuer filed with the Texas Department of Insurance for alleged violations of Insurance Code Article 21.53N §3 shall include:

(1) a description of the alleged violation under Article 21.53N;

(2) the complainant´s name, address, telephone number and fax number;

(3) the physician´s or provider´s name, if different than the complainant;

(4) the name of the issuer;

(5) a statement indicating the complaint applies to a health benefit plan as described in §21.3303 of this subchapter (relating to Applicability); and

(6) documentation from the physician or provider that:

(A) identifies the amount reimbursed by the issuer for a covered reproductive health or reproductive oncology service provided to a woman;

(B) identifies the amount of time and resources spent in providing the covered reproductive health or reproductive oncology service;

(C) using objective criteria, identifies the same or comparable covered service provided exclusively to men or to the general population offered by the issuer;

(D) identifies the difference, if any, in the amount of time and resources spent in providing the covered reproductive health or reproductive oncology service and the same or comparable covered service using objective criteria;

(E) identifies the level of expertise needed to provide the covered reproductive health or reproductive oncology service and the same or comparable covered service; and

(F) compares the difference in reimbursements for the covered reproductive health or reproductive oncology service and the same or comparable service from the issuer within the same geographic service area as the physician or the provider performing the service.

(b) Within 10 days of receipt of a complaint, the department will determine if all the information in subsection (a) of this section has been received.

(c) If all the information identified in subsection (a) of this section is included in the complaint:

(1) the complaint will be considered filed on the date of receipt;

(2) the complainant will be notified in writing and the issuer will be contacted for a response; and

(3) the 120-day time period in Article 21.53N §4(c) will commence.

(d) If all the information identified in subsection (a) of this section is not included with the complaint, the complaint will be returned to the complainant with a letter explaining the deficiencies.

(e) If the department believes that the information received by the department under subsection (a) of this section substantiates the alleged unfair discrimination in compensation as contemplated in Article 21.53N of the Insurance Code and this subchapter, action will be taken in accordance with Article 21.53N §4 of the Insurance Code.



For more information, contact:

Contact Information and Other Helpful Links