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You are here: Home . rules . 2003 . 0630-059
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Subchapter KK. Exclusive Provider Benefit Plan

28 TAC §§3.9201 ­ 3.9212

The Texas Department of Insurance (TDI) proposes new Subchapter KK, §§3.9201 ­ 3.9212, concerning exclusive provider benefit plans. These proposed sections are necessary to define an exclusive provider benefit plan (EPP),provide operational details and regulatory requirements. An EPP is only statutorily authorized for use in three circumstances: (1) by issuers who contract with the Texas Health and Human Services Commission (HHSC) to provide health services under the Texas Children´s Health Insurance Program (CHIP) pursuant to Chapter 62, Texas Health and Safety Code, (2) to provide Medicaid managed care pursuant to Chapter 533, Texas Government Code, or (3) pursuant to the statewide rural health care system (the System) to sponsor, arrange for, or provide health care services in rural areas, as provided by Chapter 845, Texas Insurance Code. An EPP is a managed care plan that an insurer may issue which requires that persons covered under those programs receive services from a network of exclusive providers.

The Legislature created CHIP, the Medicaid managed care program and the System to assist populations in obtaining health care benefits and endowed them with added flexibility because these particular programs face unusual significant financial challenges and other feasibility issues. TDI proposes these rules to offer an alternative plan that meets the legislative goal of providing health care benefits to these particular populations.

Chapter 62 of the Health and Safety Code provides that HHSC may direct the Texas Department of Health to enter into contracts with insurance companies, health maintenance organizations, or other entities including a primary care case management provider network, to provide health care services to eligible CHIP recipients. Sec. 62.054 states that TDI shall, at the request of HHSC, provide any necessary assistance with the development of the CHIP plan and shall develop any necessary rules, in consultation with HHSC.

Chapter 845 of the Texas Insurance Code establishes a statewide rural health care system to sponsor, arrange for, or provide health care services for programs in rural areas that are not subject to certain other statutorily-created assistance programs (including CHIP). The System is a non-profit corporation authorized to contract with or otherwise arrange for local health care providers to deliver health care services in areas designated as rural.

Chapter 533 of the Texas Government Code provides for implementation of the Medicaid managed care program. HHSC contracts with managed care organizations to provide a health care delivery system to recipients of Medicaid. House Bill 2292 (at Section 2.29) passed in the 78th Legislature, adds §533.0025 which requires HHSC to determine the most cost-effective means to accomplish delivery of services for Medicaid and includes exclusive provider organization models as an alternative for this purpose. Therefore, an exclusive provider plan may be utilized to provide Medicaid managed care.

As previously stated, these proposed sections are necessary to define an EPP as well as provide entity characteristics, operational details and regulatory requirements. An EPP blends characteristics found in both indemnity and HMO plans. Therefore, operational and entity characteristics are important aspects in determining what regulatory and compliance requirements govern an EPP. This proposed subchapter provides a roadmap of what an EPP is, how it works, when it can be used, and what regulatory requirements govern.

Proposed §3.9201 sets out the applicability of this subchapter. Proposed §3.9202 sets forth various definitions. Proposed §3.9203 discusses specifics of the policy and method for calculating the schedule of premium rates for insured coverage. Proposed §3.9204 explains requirements for health care provider contracts. Proposed §3.9205 addresses compliance requirements for limited provider networks. Proposed §3.9206 explains that issuers must establish and maintain quality improvement and utilization management programs. Proposed §3.9207 states that issuers are subject to credentialing criteria requirements for health care providers. Proposed §3.9208 requires that issuers must comply with network accessibility and availability requirements. Proposed §3.9209 sets out mandatory disclosure requirements. Proposed §3.9210 describes the complaint system available to insureds or providers concerning health care services, including a process for the notice and appeal of complaints, and proposed §3.9211 describes the process for filing a complaint with the department. Proposed §3.9212 sets out requirements for an internal appeals system which issuers must implement and maintain.

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 to offer a practical, cost-efficient approach for providing health care to Medicaid, CHIP and/or rural populations. Any economic cost to persons required to comply with the sections will be the result of the legislature´s passage of SB 445 (establishing CHIP in the 76th Legislature), HB 2292 (establishing an exclusive provider organization plan as a cost-effective means for providing Medicaid managed care in the 78th Legislature) and SB 1246 (establishing the System in the 75th Legislature) and not as a result of the enforcement or administration of this rule. Even if this proposal were to result in an adverse economic effect on small or micro businesses, it is neither legal nor feasible to waive the requirements of the subchapter for small or micro businesses, as that waiver would contravene the effect and intent of SB 445, HB 2292 and SB 1246.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on August 11, 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, Regulatory Matters, Life, Health & 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 new sections are proposed under the Insurance Code, Chapter 845 and §36.001, the Government Code, Chapter 533 and the Health & Safety Code, Chapter 62. Section 845.004 authorizes the commissioner to adopt rules as necessary to implement the Statewide Rural Health Care System Act. 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. Section 533.0025 of the Government Code provides that the Medicaid managed care delivery system may be accomplished through an exclusive provider organization. Section 62.051 of the Health & Safety Code provides that the Commissioner of the Health and Human Services Commission may delegate to the Department of Insurance the authority to adopt, with the approval of the commission, any rules necessary to implement the CHIP program.

The following articles are affected by this proposal: Insurance Code, Chapter 845.004 Health & Safety Code, §62.051 Government Code, §533.0025

§3.9201. Application. This subchapter applies to an exclusive provider benefit plan (EPP) written by an issuer which has contracted with the Health and Human Services Commission (HHSC) to provide services under the Texas Children´s Health Insurance Program (CHIP), Medicaid or with the Statewide Rural Health Care System (the System). An issuer may only use an EPP in the System and/or by contract with HHSC for CHIP or Medicaid. This subchapter applies to new or renewed contracts on or after the effective date of this subchapter.

§3.9202. Definitions.

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

(1) Adverse determination - A determination by a utilization review agent that the health care services furnished or proposed to be furnished to a patient are not medically necessary or not appropriate.

(2) Complaint - Any dissatisfaction, expressed by a complainant orally or in writing to the issuer, with any aspect of the issuer´s operation, including plan administration; the denial, or termination of a service for reasons not related to medical necessity; the way a service is provided; or disenrollment decisions, expressed by a complainant. The term does not include a misunderstanding or problem of misinformation that is resolved promptly by clearing up the misunderstanding or supplying the appropriate information to the satisfaction of the insured and does not include a provider´s or insured´s oral or written dissatisfaction with an adverse determination.

(3) Credentialing - The process of collecting, assessing, and validating qualifications and other relevant information pertaining to a health care provider to determine eligibility to deliver health care services.

(4) Emergency care - Health care services provided in a hospital emergency facility or comparable facility to evaluate and stabilize medical conditions of a recent onset and severity, including but not limited to severe pain, that would lead a prudent layperson possessing an average knowledge of medicine and health to believe that his or her condition, sickness, or injury is of such a nature that failure to get immediate medical care could result in:

(A) placing the patient´s health in serious jeopardy;

(B) serious impairment to bodily functions;

(C) serious dysfunction of any bodily organ or part;

(D) serious disfigurement; or

(E) in the case of a pregnant woman, serious jeopardy to the health of the fetus.

(5) Exclusive provider - A health care provider or an organization of health care providers who contract or subcontract to provide health care services to covered persons.

(6) Exclusive provider benefit plan (EPP) - A type of health care plan offered by an issuer that arranges for or provides benefits to covered persons through a network of exclusive providers, and that limits or excludes benefits for services provided by other providers, except in cases of emergency or approved referral.

(7) Health care provider - Any person, corporation, facility, or institution licensed by the State of Texas (including physicians, and practitioners listed in Insurance Code Art. 21.52) to provide health care services.

(8) Health care services - Any episodic or ongoing services such as pharmaceutical, diagnostic, behavioral health, medical, dental care or chiropractic in either an inpatient or outpatient setting rendered by a health care provider for the purpose of treating, preventing, alleviating, curing or healing illness, injury, or disease.

(9) Hospital - A licensed public or private institution as defined in Chapter 241, Health and Safety Code, or in Subtitle C, Title 7, Health and Safety Code.

(10) Independent review organization - An entity that is certified by the commissioner to conduct independent review under the authority of Insurance Code Article 21.58C.

(11) Institutional provider - A hospital, nursing home, or any other medical or health-related service facility caring for the sick or injured or providing care for other coverage which may be provided in a health insurance policy.

(12) Insured - For purposes of this subchapter, a person covered under an EPP.

(13) Issuer - An insurance company authorized to do business in Texas that contracts with the Health and Human Services Commission (HHSC) to provide CHIP or Medicaid coverage or contracts with or is sponsored by the System to issue an exclusive provider benefit plan.

(14) Life-threatening - A disease or condition for which the likelihood of death is probable unless the course of the disease or condition is interrupted.

(15) Limited provider network - A subnetwork within a network in which contractual relationships exist between health care providers, physician associations and/or physician groups which limit the insureds´ access to only those health care providers in the subnetwork.

(16) Out-of-area benefits - Benefits that the EPP covers when its insureds are outside the geographical limits of the EPP service area.

(17) Physician - Anyone licensed to practice medicine in the State of Texas.

(18) Primary care physician or primary care provider - A health care provider who has been selected by the insured to provide initial and primary care, maintain the continuity of patient care, and who may initiate referrals for care.

(19) Quality improvement - A system to continuously examine, monitor and revise processes and systems that support and improve administrative and clinical functions.

(20) Service area - A defined geographic area within which health care services are available and accessible to EPP insureds who live, reside or work within that geographic area.

(21) Urgent care - Health care services provided in a situation other than an emergency which are typically provided in settings such as a health care provider´s office or urgent care center, as a result of an acute injury or illness that is severe or painful enough to lead a prudent layperson, possessing an average knowledge of medicine and health, to believe that his or her condition, illness, or injury is of such a nature that failure to obtain treatment within a reasonable period of time would result in serious deterioration of the current health condition.

(22) Utilization review - A system for prospective or concurrent review of the medical necessity and appropriateness of health care services being provided or proposed to be provided to an individual within this state. Utilization review shall not include elective requests for clarification of coverage.

§3.9203. Policy and Premium Rates.

(a) Disclosure of Complaint System. An EPP policy or certificate must contain the Complaints and Appeals Process found in this subchapter. This information must include a clear and understandable description of the issuer´s methods for resolving complaints. An issuer must provide any subsequent changes to the complaint system to insureds, which it may include in a separate document issued to the insured.

(b) Medically Necessary Covered Services. If medically necessary covered services are not available through exclusive providers, the issuer, on the request of an exclusive provider, shall allow referral within a reasonable period to a non-network health care provider and shall fully reimburse the non-network health care provider at the usual and customary or an agreed rate. The policy must provide for a review by a health care provider of the same specialty or a similar specialty as the type of health care provider to whom a referral is requested before the issuer may deny a referral.

(c) Schedule of Premiums. An issuer must file the schedule of premium rates and formula or method for calculating the schedule of premium rates for covered health care services along with supporting documentation with the commissioner before it is used in conjunction with any EPP. The issuer must establish the formula or method in accordance with accepted actuarial principles and must produce premium rates that are not excessive, inadequate, or unfairly discriminatory, as well as premium rates that are reasonable with respect to benefits. An issuer may not alter the premium rates resulting from the application of the formula or method for an individual insured based on the status of that insured's health.

(1) An issuer must accompany each schedule of premium rates and formula or method for calculating the schedule of premium rates with the certification of a qualified actuary that, based on reasonable assumptions, the formula is appropriate to produce premium rates that are not excessive, inadequate, or unfairly discriminatory. An actuary is considered qualified if he or she:

(A) is a member of the American Academy of Actuaries; or

(B) is a Fellow of the Society of Actuaries.

(2) An issuer must accompany each formula or method for calculating the schedule of premium rates with adequate detail including assumptions to justify that the premium rates produced by the formula or method are not excessive, inadequate, or unfairly discriminatory.

(3) If the formula or method for calculating the schedule of premium rates and the resulting rates are to be continued beyond a one-year period, the issuer must file with the commissioner, no later that the anniversary of the effective date of the original filing, an actuarial statement stating that the issuer has applied the previously filed formula or method consistently, and that the rates charged have proven and are expected to continue to be adequate, not excessive, nor unfairly discriminatory. The issuer must include with this filing a reconciliation of actual benefits to a schedule of premium rates.

(4) To the extent that an entity contracting with the insured predetermines the schedule of premium rates, the issuer must submit the information described in this subsection and demonstrate that the issuer is able to provide the services for the contracted rates.

§3.9204. Contracting with Health Care Providers.

(a) An issuer shall notify, by publication or in writing, all health care providers in the service area of its intent to offer an EPP and of the opportunity to participate. The issuer shall provide such notice prior to issuance of the initial EPP and yearly thereafter.

(b) An issuer shall on request make available and disclose to any health care provider the issuer´s written application procedures, qualifications and information concerning requirements for participation as an exclusive provider. An issuer shall provide written notice of the reasons it denied the application to each health care provider who applies to contract and who is denied.

(c) An issuer may not, on the sole basis of category or specific type of license or authorization, deny to any health care provider licensed or otherwise authorized to practice in this state, participation to provide health care services that are covered by the issuer, and within the scope of licensure or authorization of that health care provider.

(d) This subsection does not prohibit the issuer from rejecting an application from a health care provider based on the determination that the plan has sufficient qualified health care providers.

(e) Each exclusive provider contract (or subcontract) must provide that, before terminating a contract with an exclusive provider, the contracting entity must provide a written explanation to the exclusive provider of the reasons for termination. On request and before the effective date of the termination, but within a period not to exceed 60 days, a provider will be entitled to a review of the issuer's proposed termination by an advisory review panel, except in a case in which there is imminent harm to patient health or an action by a state medical or dental board, other medical or dental licensing board, or other licensing board or other government entity, that effectively impairs the health care provider's ability to practice medicine, dentistry, or another profession, or in a case of fraud or malfeasance. The advisory review panel shall be composed of exclusive providers, including at least one representative in the health care provider's specialty or a similar specialty, if available, appointed to serve on the standing quality assurance committee or utilization review committee of the issuer. The issuer must consider the decision of the advisory review panel, but it is not binding on the issuer. The issuer will provide to the affected health care provider, on request, a copy of the recommendation of the advisory review panel and the issuer's determination.

(f) Each exclusive provider contract (or subcontract) must provide that an issuer or provider shall give reasonable advance notice to an insured of the impending termination from the plan of an exclusive provider who is currently treating the insured. Each contract must also provide that the termination of the exclusive provider´s contract, except for reason of medical competence or professional behavior, does not release the issuer from the obligation to reimburse the exclusive provider who is treating a patient of special circumstance, such as a person who has a disability, acute condition, or life-threatening illness or is past the twenty-fourth week of pregnancy, at no less than the contract rate for that insured's care in exchange for continuity of ongoing treatment of an insured then receiving medically necessary treatment in accordance with the dictates of medical prudence. For purposes of this subsection, "special circumstance" means a condition such that the treating health care provider reasonably believes that discontinuing care by the treating health care provider could cause harm to the patient. The treating health care provider must identify the special circumstance and must request that the insured be permitted to continue treatment under the health care provider's care and agree not to seek payment from the patient of any amounts for which the insured would not be responsible if the exclusive provider were still in the EPP network. Each exclusive provider contract shall provide procedures for resolving disputes regarding the necessity for continued treatment by the exclusive provider. This section does not extend the obligation of the issuer to reimburse the terminated health care provider for ongoing treatment of an insured beyond the 90th day after the effective date of the termination, or beyond nine months in the case of an insured who at the time of the termination has been diagnosed with a terminal illness. However, the obligation of the issuer to reimburse the terminated heal th care provider for services to an insured who at the time of the termination is past the 24th week of pregnancy, extends through delivery of the child, immediate postpartum care, and any follow-up checkup within the first six weeks of delivery.

(g) On request by the exclusive provider, an issuer must provide an expedited review process to any exclusive provider who is terminated or deselected. If the exclusive provider is deselected for reasons other than at the provider's request, the issuer may not notify insureds of the exclusive provider's deselection until the effective date of the termination or the time a review panel makes a formal recommendation. If an exclusive provider is deselected for reasons related to imminent harm, the issuer may notify insureds immediately.

(h) An exclusive provider contract (or subcontract) may not contain any clause purporting to indemnify the issuer for any tort liability resulting from acts or omissions of the issuer.

(i) An exclusive provider contract (or subcontract) shall specify that the exclusive provider will hold an insured harmless for payment of the cost of covered health care services in the event the issuer fails to pay the provider for health care services.

(j) An issuer that conducts or uses economic profiling of exclusive providers must make available upon request from a network provider the economic profile of that provider, including the standards by which the provider is measured. An economic profile must recognize the characteristics of an exclusive provider's practice that may account for variations from expected costs.

(k) An exclusive provider contract must require the health care provider to post, in the office of the health care provider, a notice to insureds of the process for resolving complaints with the issuer. The notice must include the Texas Department of Insurance's toll-free telephone number for filing non-Medicaid complaints.

(l) An exclusive provider contract may not prohibit, attempt to prohibit, or discourage an exclusive provider from discussing with or communicating in good faith to a current, prospective, or former patient, or a party designated by a patient, with respect to:

(1) information or opinions regarding the patient's health care, including the patient's medical condition or treatment options;

(2) information or opinions regarding the provisions, terms, requirements, or services of the EPP as they relate to the medical needs of the patient; or

(3) the fact that the exclusive provider's contract has terminated or that the exclusive provider will otherwise no longer be providing health care services under the EPP.

(m) An issuer may not in any way penalize, terminate, or refuse to compensate an exclusive provider for communicating with a current, prospective, or former patient, or a party designated by a patient, in any manner protected by this subchapter. §3.9205. Compliance of Limited Provider Network. An issuer that uses subcontractors to perform one or more function(s) remains responsible for ensuring compliance with all applicable regulatory compliance requirements. A limited provider network shall comply with all statutory and regulatory requirements.

§3.9206. Quality Improvement and Utilization Management.

( a) An issuer must establish and maintain procedures to assure that the health care services provided to insureds are rendered under reasonable standards of quality of care consistent with prevailing professionally-recognized standards of medical practice. These procedures must include:

(1) mechanisms to assure availability, accessibility, quality, and continuity of care;

(2) an ongoing internal quality improvement program to monitor and evaluate its health care services, including primary and specialist physician services, and ancillary and preventive health care services, in all institutional and non-institutional contexts;

(3) a record of formal proceedings of quality improvement program activities and a means for maintaining documentation in a confidential manner. Quality improvement program minutes shall be made available to the commissioner;

(4) a physician review panel to assist in reviewing medical guidelines or criteria and to assist in determining the prescription drugs to be covered by the EPP, if the plan contains a prescription drug benefit;

(5) an adequate patient record system that will facilitate documentation and retrieval of clinical information for the purpose of the issuer´s evaluation of continuity and coordination of patient care and assessment of the quality of health care services provided to insureds;

(6) a mechanism for making available to the commissioner the clinical records of insureds´ for examination and review. Such records are confidential and privileged, and are not subject to Government Code, Chapter 552, Public Information, or to subpoena, except to the extent necessary to enable the commissioner to enforce this article; and

(7) a mechanism for the periodic reporting of quality improvement program activities to its governing body, providers, and appropriate organization staff. An issuer is also subject to the same quality improvement requirements as outlined in §11.1901 of this title (relating to Quality Improvement Structure).

(b) An issuer shall establish a mechanism for utilizing independent review organizations as outlined in Insurance Code Article 21.58A.

§3.9207. Credentialing Requirements for Health Care Providers.

An issuer is subject to the same credentialing criteria as outlined in §11.1902(4) of this title (relating to Quality Improvement Program).

§3.9208. Provider Network: Accessibility and Availability.

An issuer is subject to the same network accessibility and availability requirements as outlined in §11.1607 of this title (relating to Accessibility and Availability Requirements). Issuers must comply with this section; any requirements under a Medicaid contract, subject to Government Code, Chapter 533; and any other applicable law.

§3.9209.Mandatory Disclosure Requirements.

(a) An issuer must write all policies, health benefit plan certificates, endorsements, amendments, applications, and riders in plain language, in a readable and understandable format, and in compliance with all applicable requirements relating to minimum readability requirements as found in §3.602 of this title (relating to Plain Language Requirements).

(b) The issuer shall provide to current or prospective insureds on request an accurate written description of the terms and conditions of the policy to allow current or prospective insureds to make comparisons and informed decisions before selecting among health care plans. The written description must be in a readable and understandable format as prescribed by the commissioner and must include a current list of exclusive providers. The issuer´s handbook may satisfy this requirement if it is substantively similar to and achieves the same level of disclosure as the written description prescribed by subsection (e) of this section and it contains the current list of health care providers.

(c) An issuer shall furnish a current list of exclusive providers to all insureds no less frequently than annually.

(d) No issuer, or agent or representative of an issuer, may cause or permit the use or distribution to prospective insureds of information which is untrue or misleading.

(e) The written plan description must be in a readable and understandable format that includes a clear, complete and accurate description of paragraphs (1) - (11) of this subsection in the following order:

(1) a statement that the plan providing the coverage is an EPP;

(2) a toll-free number, unless exempted by statute or rule, and address for the prospective or current group contract holder or prospective or current enrollee to obtain additional information, including provider information;

(3) all covered services and benefits, including a description of the options (if any) for prescription drug coverage, both generic and brand name;

(4) emergency care services and benefits, including coverage for out-of-area emergency care services and information on access to after-hours care;

(5) out-of-area services and benefits (if any);

(6) an explanation of enrollee financial responsibility for payment of premiums, copayments, deductibles, and any other out-of-pocket expenses for noncovered or out-of-plan services, and an explanation that exclusive providers have agreed to look only to the issuer and not to its insureds for payment of covered services, except as set forth in the description of the plan;

(7) any limitations or exclusions, including the existence of any drug formulary limitations;

(8) any description of prior authorization requirements, including limitations or restrictions thereon, and a summary of procedures to obtain approval for referrals to providers other than primary care physicians or dentists, and other review requirements, including preauthorization review, concurrent review, post service review, and post payment review, and the consequences resulting from the failure to obtain any required authorizations;

(9) provision for continuity of treatment in the event of the termination of a primary care physician or dentist in those instances where an insured has selected one;

(10) a summary of the complaint and appeal procedures of the EPP, a statement of the availability of the independent review process as applicable, and a statement that the EPP is prohibited from retaliating against insureds because the group contract holder or insured has filed a complaint against the EPP or appealed a decision of the EPP, and is prohibited from retaliating against a health care provider because the health care provider has, on behalf of an insured, reasonably filed a complaint against the EPP or appealed a decision of the EPP; and

(11) a statement that female insureds shall have direct access to an OB/GYN (who is an exclusive provider) for female services.

§3.9210. Complaints System

(a) Complaints System. Issuers must comply with this section; any requirements under a Medicaid contract, subject to Government Code, Chapter 533; and any other applicable law. The complaint system must provide reasonable procedures for the resolution of oral and written complaints initiated by insureds or providers concerning health care services, including a process for the notice and appeal of complaints.

(1) If a complainant notifies the issuer orally or in writing of a complaint, the issuer, not later than the fifth business day after the date of the receipt of the complaint, shall send to the complainant a letter acknowledging the date of receipt of the complaint that includes a description of the organization's complaint procedures and time frames. If the complaint is received orally, the issuer shall also enclose a one-page complaint form. The one-page complaint form must prominently and clearly state that the complaint form must be returned to the issuer for prompt resolution of the complaint.

(A) The issuer shall investigate each oral and written complaint received in accordance with its policies and in compliance with this subchapter.

(B) Investigation and resolution of complaints concerning emergencies or denials of continued stays for hospitalization shall be concluded in accordance with the medical or dental immediacy of the case and may not exceed one business day from receipt of the complaint.

(C) For all other complaints, the total time for acknowledgment, investigation, and resolution of the complaint by the issuer may not exceed 30 calendar days after the date the issuer receives the written complaint or one-page complaint form from the complainant.

(D) After the issuer has investigated a complaint, the issuer shall send a response letter to the complainant explaining the issuer's resolution of the complaint within the time frame as set forth in this section. The letter must include a statement of the specific medical and contractual reasons for the resolution and the specialization of any health care provider consulted. The response letter must contain a full description of the process for appeal, including the time frames for the appeal process and the time frames for the final decision on the appeal.

(2) If the complaint is not resolved to the satisfaction of the complainant, the issuer shall provide an appeals process that includes the right of the complainant either to appear in person before a complaint appeal panel at a location where the insured normally receives health care services, unless another site is agreed to by the complainant, or to address a written appeal to the complaint appeal panel. The issuer shall complete the appeals process under this section not later than the 30th calendar day after the date of the receipt of the written request for appeal.

(A) The issuer shall send an acknowledgment letter to the complainant not later than the fifth business day after the date of receipt of the written request for appeal.

(B) The issuer shall appoint members to the complaint appeal panel, which shall advise the issuer on the resolution of the dispute. The complaint appeal panel shall be composed of equal numbers of issuer staff, physicians or other providers, and insureds. Each member on the complaint appeal panel must not have been previously involved in the disputed decision. The health care providers must have experience in the area of care that is in dispute and must be independent of any health care provider who made any prior determination. If specialty care is in dispute, the appeal panel must include a person who is a specialist in the field, or related field, of care to which the appeal relates. Panel members that are insureds may not be employees of the issuer.

(C) Not later than the fifth business day before the scheduled meeting of the panel, unless the complainant agrees otherwise, the issuer shall provide to the complainant or the complainant's designated representative:

(i) any documentation to be presented to the panel by the issuer staff;

(ii) the specialization of any health care providers consulted during the investigation; and

(iii) the name and affiliation of each issuer representative on the panel.

(D) The complainant, or designated representative if the insured is a minor or disabled, is entitled to:

(i) appear in person before the complaint appeal panel;

(ii) present alternative expert testimony; and

(iii) request the presence of and question any person responsible for making the prior determination that resulted in the appeal.

(b) Notice of the final decision of the issuer on the appeal must include a statement of the specific contractual and clinical criteria used to reach the final decision. The notice must also include the toll-free telephone number and the address of the Texas Department of Insurance.

(c) In compliance with Chapter 21, Subchapter Q of this Title (relating to Complaint Records to be Maintained), the issuer shall maintain a record of each complaint and any complaint proceeding and any actions taken on a complaint for three years from the date of the receipt of the complaint. The record must include complaints relating to limited provider networks. A complainant is entitled to a copy of the record on the applicable complaint and any complaint proceeding.

(1) Each issuer shall maintain a complaint and appeal log regarding each complaint.

(2) Each issuer shall maintain documentation on each complaint received and the action taken on each complaint until the third anniversary of the date of receipt of the complaint. The Texas Department of Insurance may review documentation maintained under this subsection, including original documentation, during any investigation of the issuer.

(d) The commissioner may examine the complaint system for compliance with this subchapter and may require the issuer to make necessary corrections.

§3.9211 Filing of Complaints. Any person, including a person who has attempted to resolve complaints through an issuer complaint system process and who is dissatisfied with the resolution, may report an alleged violation of this subchapter to the Texas Department of Insurance at www.tdi.state.tx.us or 1-800-252-3439.

§3.9212. Appeal of Non-Medicaid Adverse Determinations . An issuer shall perform utilization review in compliance with Insurance Code Article 21.58A and must maintain procedures for notification, review, and appeal of an adverse determination, as defined by this section. An issuer shall implement and maintain an internal appeal system for non-Medicaid adverse determinations that provides reasonable procedures for the resolution of an oral or written appeal initiated by an insured, a person acting on behalf of an insured, or an insured´s provider of record concerning dissatisfaction or disagreement with an adverse determination.



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