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Subchapter J. Physician and Provider Contracts and Arrangements

28 TAC §11.901

The Texas Department of Insurance (the department) proposes amendments to Sec. 11.901, concerning required contracting provisions for health maintenance organizations (HMOs). These proposed amendments are necessary to implement provisions of SB 418 (78 th legislative session) which relate to the coding guidelines and other information that an HMO must supply upon request of a physician or provider pursuant to a contract with an HMO. SB 418, in pertinent part, requires certain changes to the department´s existing rule requiring disclosure of fee schedules and coding information that affect the payment for services provided by physicians and other health care providers pursuant to a contract subject to Texas Insurance Code Chapter 843, Subchapter J. Other provisions of SB 418 are addressed in proposed rules published elsewhere in this issue of the Texas Register .

The proposed amendments to paragraphs (10) and (10)(F) delete outdated compliance date language contained in the original rule. The proposed amendments to paragraph (10)(A)(iii) and (iv) state that disclosed bundling processes must be consistent with nationally recognized and generally accepted bundling edits and logic, and add to the list of information to be disclosed, the publisher, product name and version of any software the HMO uses to determine bundling and unbundling of claims. The proposed amendments to paragraph (10)(D) require the HMO to give 90, rather than 60, days written notice of any changes, and provide that an HMO may not make retroactive changes to claims payment procedures or any of the information required to be provided by paragraph (10). Proposed paragraph (10)(G) adds "other business operations" and "communications with a governmental agency involved in the regulation of healthcare or insurance" to the list of acceptable uses of disclosed information. The proposed amendments to that subsection also change the term "verification" to "representation" in order to avoid confusion with the verification provisions of SB 418.

Proposed paragraph (10)(H) allows a physician or provider that receives information under the disclosure requirements to terminate its contract with an HMO, on or before the 30 th day after the date the physician or provider receives the information, without penalty or discrimination in participation in other products or plans so long as proper notice is given to enrollees in compliance with existing law. Proposed paragraph (10)(I) states the provisions of this paragraph may not be waived, voided, or nullified by contract. Proposed paragraph (11) provides that an HMO may require a physician or provider to retain in its records updated information concerning a patient´s other health benefit plan coverage.

The department will consider the adoption of the proposed amendments to Sec. 11.901 in a public hearing under Docket No. 2554 on August 7, 2003 , at 9:30 a.m. in Room 100 of the William P. Hobby Jr. State Office Building , 333 Guadalupe, Austin , Texas .

 

Kimberly Stokes, Senior Associate Commissioner, Life, Health and Licensing Program , has determined that, for each year of the first five years the proposed amendments 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 amendments. There will be no measurable effect on local employment or the local economy as a result of the proposal.

Ms. Stokes has also determined that, for each year of the first five years the amendments are in effect, the public benefits anticipated as a result of the proposed amendments will be the implementation of the provisions of SB 418, which will enhance current disclosure procedures between HMOs and their contracted physicians and providers. Any cost to persons required to comply with this section for each year of the first five years the proposed section will be in effect is the result of enactment of SB 418 and not the result of the adoption, enforcement, or administration of this section. In addition, the amendments in many respects only further refine or clarify the procedures contained in the current rule. Because any potential costs are mandated by the statute, it is the department´s position that it would be neither legal nor feasible to waive or modify the requirements for HMOs that are small or micro businesses, because contracted physicians and providers should nevertheless be able to obtain information regarding claims processing information and procedures whether they are contracting with a small or large HMO. Additionally, SB 418 makes it clear that the requirements implemented by this section should apply to all parties, regardless of the size of the entity.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on August 4, 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 Kimberly Stokes, Senior Associate Commissioner, Life, Health and Licensing Program, Mail Code 107-2A, Texas Department of Insurance, P.O. Box 149104 , Austin , Texas 78714-9104 .

The amendments are proposed under the Insurance Code §§843.309, 843.319, 843.341, 843.349 and 36.001. Section 843.341(b) states that an HMO´s claims payment processes shall be consistent with nationally recognized, generally accepted bundling edits and logic. Section 843.349(a) provides in part that an HMO may require a physician or provider to retain in the physician´s or provider´s records updated information concerning other health benefit plan coverage. Section 843.319 contains requirements and procedures by which coding, bundling, or other payment processes and fee schedules may be requested, and must be provided, pursuant to a contract between an HMO and a physician or provider. Section 843.309 requires an HMO´s contract with a physician or provider to provide for reasonable advance notice to enrollees of termination of a physician or provider from the HMO´s network. Section 36.001 of the Insurance Code 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: §§843.309, Contracts With Physians or Providers: Notice to Certain Enrollees of Termination of Physician or Provider Participation in Plan; 843.319, Availability of Coding Guidelines; 843.341, Claims Processing Procedures; 843.349, Coordination of Benefits

 

§11.901. Required Provisions. Physician and provider contracts and arrangements shall include the following provisions:

(1) ­ (9) (No change.)

(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 , which must be consistent with nationally recognized and generally accepted bundling edits and logic ;

(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; and

(vii) the publisher, product name and version of any software the HMO uses to determine bundling and unbundling of claims .

(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 90 [ 60 ] calendar days written notice to the contracting physician or provider identifying with specificity the amendment, revision or substitution. An HMO may not make retroactive changes to claims payment procedures or any of the information required to be provided by this paragraph. 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 HMO [ 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 :

(I) the physician's or provider's practice management ,

(II) [ and ] billing activities ,

(III) other business operations, or

(IV) communications with a governmental agency involved in the regulation of healthcare or insurance; and

(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 representation [ verification ] that an enrollee is covered for that service under the terms of the enrollee's evidence of coverage.

(H) A physician or provider that receives information under this paragraph may terminate the contract on or before the 30 th day after the date the physician or provider receives the information without penalty or discrimination in participation in other healthcare products or plans. The contract between the HMO and physician or provider shall provide for reasonable advance notice to enrollees being treated by the physician or provider prior to the termination consistent with Insurance Code §843.309.

(I) The provisions of this paragraph may not be waived, voided, or nullified by contract.

(11) An HMO may require a contracting physician or provider to retain in the contracting physician or provider´s records updated information concerning a patient´s other health benefit plan coverage.


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