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UNFAIR DISCRIMINATION IN COMPENSATION FOR WOMEN'S HEALTH CARE

The Commissioner of Insurance adopts new Subchapter Y, §21.3301-21.3305, concerning discrimination in compensation to physicians and providers of women's health care services. The new sections are adopted with changes to the proposed t§ext as published in the February 22, 2002 issue of the Texas Register (27 TexReg 1261).

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

The adopted rules specify that covered services for reproductive health or reproductive oncology services for women must be reimbursed at an amount not less than the annual average compensation per hour or unit as would be paid by the same issuer for the same or comparable services provided exclusively to men or to the general population. The department has outlined in the rule the type of information and documentation that must accompany a complaint alleging a violation of Article 21.53N or new §§21.3301-21.3305. The department recognizes that reimbursements to physicians and providers may vary depending on factors that do not involve unfair discrimination. The adopted rules provide the minimum information and documentation the department must receive in order to investigate an allegation of unfair discrimination in reimbursements pursuant to SB 8.

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

General: A commenter states that some health plans contract for maternity services at a global rate and thus would be unable to determine an equivalent service. The commenter asks how the department will evaluate a global maternity rate and whether the department will clarify this issue in the rules.

Agency Response: The department does not believe that it is necessary for the rule to identify services that may be equivalent to maternity services that are subject to a global rate or to provide clarification or specific detail about how it would evaluate such a complaint if one were received. It is the department´s understanding that use of a "global rate" for maternity services -- as opposed to use of a rate for each individual service provided to an enrollee -- is negotiated between the physician or provider and the plan issuer. If a physician or provider believes that the global rate is discriminatory under the statute and the rule, the burden is on the physician or provider to establish in its complaint how and why the global rate is discriminatory. The department´s evaluation of this and any other complaint will be made in accordance with the information submitted by the physician or provider in support of the complaint.

Cost Note: A commenter states that the Texas Health & Human Services Commission (HHSC) has determined that the rule applies to HMOs participating in Medicaid and the Children's Health Insurance Program HMOs. The commenter believes that there could be significant fiscal impact on HHSC if participating HMOs are required to pay rates for reproductive services that exceed existing Medicaid fee schedules because the state would have to raise capitation rates to the HMOs to compensate the plans for the coverage. The commenter believes that the department should have included this potential impact as a cost to state or local government that is created by the rule.

Agency Response: The department disagrees that the rule, as opposed to the statute, creates any potential costs to HHSC. The department has reviewed the communication from HHSC on which the commenter relied in making this comment. The required actions are identified as follows: "Policies will be developed and guidance provided to the Medicaid and CHIP HMOs regarding compliance with SB 8. I would imagine contract amendments will be required, as well." Any costs attributed to these actions would be for compliance with SB 8, as opposed to any requirement added by this rule. Similarly, any costs for increased reimbursement would be attributable to SB 8 itself rather than the rule. Finally, the department notes that neither HHSC nor any other state agency has submitted comments regarding the cost of or any other issue relating to this rule.

General, §§21.3301 & 21.3304: A commenter recommends adding a section to describe the department´s procedures in evaluating compliance with the statute and the rule, and questions whether the department will utilize the expertise of an independent review organization or some other independent medical and actuarial resource. The commenter believes that it is unclear how the department can enforce this rule and asks whether the department will specify appropriate clinical or other criteria to be used in determining violations and whether the department will ensure that consistent criteria are used for all companies.

Agency Response: The department does not believe such an additional section is necessary nor does it believe that specific clinical or other criteria need be specified in the rule to ensure that consistent criteria are applied in every complaint. As is the case with any complaint alleging a violation of the Texas Insurance Code or its rules, the department will evaluate each individual complaint and perform any necessary investigation to determine if a violation of the Texas Insurance Code (in this case, Article, 21.53N) has occurred. Both SB 8 and this rule require any physician or provider filing a complaint to set forth the basis for its belief that the reimbursement in question is discriminatory when compared to other specific reimbursement. The information required to evaluate and resolve a complaint filed under this rule will depend on the specific facts alleged in the complaint. If department staff is unable to evaluate an individual complaint, the department has the discretion, as it does in any investigation, to contract with medical, actuarial or other experts to advise the department as necessary on a case by case basis.

§21.3304(a): A commenter quotes the statute to require reimbursement "for reproductive health and oncology services provided to women an amount not less than the annual compensation per hour or unit as would be paid in the service area . . . for the same resources, as applicable, that would be used in providing health services exclusively to men or the general population." The commenter believes that the department lacks statutory authority to add the phrase "or comparable" because it changes the meaning of the statute.

Agency Response:

The department disagrees that the use of the word "comparable" constitutes an unauthorized expansion of the scope of SB 8. The comment misquotes the statute. SB 8, at §3, requires health benefit plans to reimburse for reproductive health and oncology services provided to women in "an amount not less than the annual compensation per hour or unit as would be paid in the service area to a physician or provider for the same medical, surgical, hospital, pharmaceutical, nursing, or other similar resources , as applicable, that would be used in providing health services exclusively to men or the general population." (Emphasis added.) In the rule, the word "comparable" was used as synonym for the word "similar" as used in §3, above. In addition, SB 8, §2, specifically refers to "comparable male-specific procedures," further demonstrating legislative intent that comparable procedures be evaluated. However, for purposes of consistency, the department has changed the word "comparable" to "similar" in this section of the adopted rule to maintain exactly the same wording used in §3 of the statute.

§21.2304(b): A commenter thinks the meaning of "in addition to other submitted reimbursement methodologies" is unclear and asks whether this phrase refers to RVUs and, if not, what other methods would be considered.

Agency Response: The phrase "other submitted reimbursement methodologies" was included to give the physician or provider the opportunity to introduce whatever information the physician or provider believes would support the allegation that the reimbursement is discriminatory. For greater clarification, the department has changed this language to read "in addition to any other reimbursement methodologies submitted by the physician or provider included as part of the complaint documentation described in subparagraph (a)(6) of §21.3305 of this subchapter (relating to Complaints), for comparing reimbursements of the same or comparable covered services offered exclusively to men or to the general population."

§21.3305: A commenter asks what the term "provider" means in the phrase "documentation from the physician or provider."

Agency Response: As used in the phrase cited in the comment, the term "provider" refers to a provider, as defined in the statute and §21.3302(3) of the rule, that brings a complaint pursuant to the rule.

For with changes: The Texas Association of Health Plans.

The new sections are adopted under the Texas Insurance Code Article 21.53N and §36.001. New Article 21.53N, enacted pursuant to Senate Bill 8, authorizes the commissioner to adopt rules to implement the statute. Section 36.001 provides that the Commissioner of Insurance may adopt rules to execute the duties and functions of the Texas Department of Insurance only as authorized by statute.

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

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

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

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

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

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

§21.3304. Reimbursements.

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

(b) In determining appropriate reimbursement for reproductive health or reproductive oncology services, the relative value units (RVUs) published by the Centers for Medicare & Medicaid Services (CMS) shall be considered, in addition to any other reimbursement methodologies submitted by the physician or provider included as part of the complaint documentation described in subparagraph (a)(6) of §21.3305 of this subchapter (relating to Complaints), for comparing reimbursements of the same or comparable covered services offered exclusively to men or to the general population.

§21.3305. Complaints.

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

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

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

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

(4) the name of the issuer;

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

(6) documentation from the physician or provider that:

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

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

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

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

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

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

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

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

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

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

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

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

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



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