28 TAC §11.2
Subchapter F. Evidence of Coverage
28 TAC §§11.508 and 11.509
The Texas Department of Insurance proposes amendments to §§11.2, 11.508 and 11.509 concerning basic health care services and state-mandated benefits for health maintenance organizations (HMOs). These proposed amendments are the result of the enactment of Senate Bill (SB) 541 during the 78 th Regular Legislative Session. That legislation, among other things, provides more flexibility in the health insurance market by authorizing insurers and HMOs to issue health plans that, in whole or in part, do not include state-mandated benefits. These consumer choice plans are the subject of proposed rules published elsewhere in this issue of the Texas Register. In addition, SB 541 amended the definition of "basic health care services" in the HMO Act, Texas Insurance Code Chapter 843, to allow the commissioner to determine those services that an enrolled population might reasonably need to be maintained in good health, and to delete the requirement that such services include, at a minimum, services designated as basic health care services for federally qualified HMOs under Section 1302, Title XIII, Public Health Service Act (42 U.S.C. Section 300e-1(1)).
The proposed amendments are necessary to comply with SB 541 by identifying basic health care services that are not tied to the specific requirements of federal law. The amendments are also necessary to amend and add definitions consistent with these changes and with the development and issuance of consumer choice plans in the HMO market. In developing a list of basic health care services, the department considered and evaluated the requirements of federal law contained in the existing rule; many of these requirements were retained, although the proposed rule, unlike the existing rule, is comprised solely of basic services that apply to all persons and removes certain services that are condition-specific. In developing the list, the department also considered the statutes and rules of neighboring states and some of the larger states with populations similar to that of Texas. The department also considered and evaluated those services that were included in evidences of coverage in use in Texas prior to the statutory directive that the federal requirements be considered the minimum standard. Based on the department's analysis of these sources, the department believes the services that are included in the proposed description of basic health care services are those that an enrolled population might reasonably need to be maintained in good health.
Consistent with SB 541, the proposed amendments also limit the application of some currently required additional mandatory benefit standards for certain group agreements and add coverage requirements for certain services as set forth in §11.508(a)(1)(H)(iv) (cancer screenings as required in Insurance Code Article 3.70-2(H) relating to mammography) and (vi) (cancer screenings as required in Insurance Code Article 21.53S relating to screening for colorectal cancer).
The proposed amendments to §11.2(b) amend the definition of basic health care service and add definitions for consumer choice plans and state-mandated plans. The proposed amendments in that section also change some of the references to certain provisions of the Insurance Code to reflect the Code´s recodification. The proposed amendments to §11.508 describe basic health care services for group, individual and conversion agreements, including state-mandated plans. The proposed amendments to §11.509 clarify that certain additional mandatory benefit standards must be included in certain group agreements, rather than in all group plans.
The Department will consider the adoption of the proposed amendments to §§11.2(b), 11.508 and 11.509 in a public hearing under Docket No. 2586 scheduled for February 6, 2004, at 9:30 a.m. in Room 100 of the William P. Hobby Jr. State Office Building, 333 Guadalupe Street in Austin, Texas.
Kimberly Stokes, Senior Associate Commissioner for 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 proposed amendments are in effect, the public benefits anticipated as a result of the proposed amendments will be advising HMOs, physicians and providers, and the public of the services that constitute basic health care services. Cost implications to persons required to comply with these amendments for each year of the first five years the proposed amendments will be in effect are as follows: These amendments remove the requirement that basic health care services include all of the currently required standards for federally qualified HMOs, as well as some requirements related to specific health conditions. Pursuant to the statute, they also limit the application of some additional mandatory benefit standards for certain group agreements, and add coverage requirements for certain services enumerated in SB 541. Consequently, any change in cost is either due to the requirements of the statute and not to these amendments or, where required by these amendments, may result in some cost savings to HMOs and ultimately to purchasers of HMO products. To the extent most of the services in the proposal are the same or similar as those required under the existing rule, they should pose no additional costs to affected entities. The precise changes in cost on an aggregate basis, whether increased or decreased, would depend upon the extent to which any of these services are utilized by the HMOs' enrollees. Because the costs are not dependent upon the size of the HMO, small business HMOs will incur the same costs, or realize the same savings, as the largest HMOs. Enrollees of small HMOs are entitled to coverage for the same basic health care services as enrollees of large HMOs. Consequently, the department believes that it is neither legal nor feasible to establish separate basic health care service requirements or waive the requirements for carriers that are small or micro businesses pursuant to Texas Government Code §2006.001.
To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on February 9, 2004 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 Article 20A.9N(j) and §§843.002(2), 843.151 and 36.001. Insurance Code Article 20A.09N(j) requires the commissioner to adopt rules as necessary to implement the statutes creating consumer choice plans. Section 843.002(2) provides that basic health care services are those the commissioner determines an enrolled population might reasonably require in order to be maintained in good health. Section 843.151 provides that the commissioner may adopt reasonable rules as necessary and proper to carry out the provisions of Chapters 843 and 20A. Section 36.001 provides that the commissioner may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state.
The following sections are affected by this proposal: Insurance Code Article 20A.9N(j)and §843.002
Subchapter A. GENERAL PROVISIONS
§11.2. Definitions.
(a) The definitions found in the Texas Health Maintenance Organization Act, [ §2, as amended, codified in ] Texas Insurance Code §843.002 [ Article 20A.02 ] , are hereby incorporated into this chapter.
(b) The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.
(1) Act--The Texas Health Maintenance Organization Act, [ Senate Bill 180, enacted by Acts 1975, 64th Legislature, Chapter 214, pages 514-530, first effective December 1, 1975, as amended ], codified as the Texas Insurance Code Chapters [ Chapter ] 20A and 843 .
(2) (4) (No change.)
(5) Agent--As defined in the Insurance Code Article [Articles] 21.07-1, §2 [ 20A.15 and 20A.15A ] , unless the context of the rule clearly indicates applicability to any agents licensed under one specific article.
(6) (No change.)
(7) Basic health care service--Health care services which an enrolled population might reasonably require to maintain good health, [ including, without limitations as to time and cost, those benefits ] as prescribed in §§11.508 and 11.509 of this title (relating to Mandatory Benefit Standards: Group, Individual and Conversion Agreements, and Additional Mandatory Benefit Standards: Group Agreement Only)[ , other than those limitations specifically prescribed in this title ].
(8) (9) (No change.)
(10) Control--As defined in the Insurance Code §§823.005 and 823.151 [ Article 21.49-1 ].
(11) (16) (No change.)
(17) HMO--A health maintenance organization as defined in Insurance Code §843.002(14) [ Article 20A.02(n) ] .
(18) (21) (No change.)
(22) Limited service HMO--An HMO which has been issued a certificate of authority to issue a limited [service] health care service plan as defined in the Insurance Code §843.002 [Article 20A.02(l)].
(23) (40) (No change.)
(41) Single service HMO--An HMO which has been issued a certificate of authority to issue a single health care service plan as defined in the Insurance Code §843.002 [ Article 20A.02(y) ] .
(42) (49) (No change.)
(50) Voting security--As defined in the Insurance Code §823.007 [ Article 21.49-1 ], including any security convertible into or evidencing a right to acquire such security.
(51) (No change.)
(52) Annual financial statement--The annual statement to be used by HMOs, as promulgated by the NAIC and as adopted by the commissioner under Insurance Code Article [ Articles ] 1.11 and §§802.001, 802.003 and 843.155 [ 20A.10 ].
(53) (57) (No change.)
(58) Consumer choice plan--A health plan offered by an HMO, as described in Subchapter AA of Chapter 21 of this title (relating to Consumer Choice Health Benefit Plans);
(59) State-mandated plan--A health plan offered by an HMO, that contains coverage for all state-mandated benefits, including those as described in §§21.3515 21.3518 of this title (relating to State-mandated Health Benefits in Individual HMO Plans, State-mandated Health Benefits in Group HMO Plans, State-mandated Health Benefits in Small Employer HMO Plans, and State-mandated Health Benefits in Large Employer HMO Plans) and offers basic health care services without limitation as to time and cost.
Subchapter F. EVIDENCE OF COVERAGE
§11.508. Mandatory Benefit Standards: Group, Individual and Conversion Agreements.
(a) Each evidence of coverage providing basic health care services [ shall contain the basic health care services defined in §11.2(b)(7) of this title (relating to Definitions), and ] shall provide the following basic health care [ such ] services when they are provided by network physicians or providers, or by non-network physicians and providers as set forth in §11.506(10) or (15) of this title (relating to Mandatory Contractual Provisions: Group, Individual and Conversion Agreement and Group Certificate) [ as needed and without limitation as to time and cost, unless such limitation is permitted in this section, including the following ]:
(1) Outpatient services, including the following:
(A) primary care and specialist physician services;
(B) outpatient services by other providers;
(C) diagnostic services, including labora tory, imaging and radiologic services ;
(D) therapeutic radiology services;
(E) prenatal services;
(F) outpatient rehabilitation therapies including physical therapy, speech therapy and occupational therapy;
(G) home health services;
(H) preventive services, including:
(i) periodic health examinations for adults as required in Insurance Code Article 20A.09B;
(ii) immunizations for children as required in Insurance Code Article 21.53F §3;
(iii) well-child care from birth as required in Insurance Code Article 20A.09E;
(iv) cancer screenings as required in Insurance Code Article 3.70-2(H) relating to mammography;
(v) cancer screenings as required in Insurance Code Article 21.53F relating to screening for prostate cancer;
(vi) cancer screenings as required in Insurance Code Article 21.53S relating to screening for colorectal cancer; and
(vii) annual eye and ear examinations for children through age 17, to determine the need for vision and hearing correction.
(I) mental health services for short-term evaluative or crisis stabilization services, which must have the same cost-sharing and benefit maximum provisions as any physical health services; and
(J) emergency services as required by Insurance Code Article 20A.09Y.
(2) Inpatient hospital services, including room and board, general nursing care, meals and special diets when medically necessary, use of operating room and related facilities, use of intensive care unit and services, x-ray services, laboratory and other diagnostic tests, drugs, medications, biologicals, anesthesia and oxygen services, special duty nursing when medically necessary, radiation therapy, inhalation therapy, administration of whole blood and blood plasma, and short-term rehabilitation therapy services in the acute hospital setting.
(3) Inpatient physician care services, including services performed, prescribed, or supervised by physicians or other health professionals including diagnostic, therapeutic, medical, surgical, preventive, referral and consultative health care services.
(4) Outpatient hospital services, including treatment services; ambulatory surgery services; diagnostic services, including laboratory, radiology, and imaging services; rehabilitation therapy; and radiation therapy.
[1] [Diabetes. A provision for the treatment of diabetes and conditions associated with diabetes pursuant to the Insurance Code Article 21.53G.]
[ (2) Diagnostic services. A provision for diagnostic laboratory and diagnostic and therapeutic radiological services in support of basic health services including professional fees. ]
[ (3) Home health services. A provision for home health services provided at an enrollee's home by health care personnel, as prescribed or directed by the responsible physician or other authority designated by the HMO. ]
[ (4) Inpatient and outpatient services. A provision for inpatient and outpatient services, including the following: ]
[ (A) outpatient services, which must include diagnostic services, treatment services and x-ray services, for patients who are ambulatory and may be provided in a non-hospital based health care facility or at a hospital; ]
[ (B) inpatient hospital services, which must include but not be limited to, room and board, general nursing care, meals and special diets when medically necessary, use of operating room and related facilities, use of intensive care unit and services, x-ray services, laboratory, and other diagnostic tests, drugs, medications, biologicals, anesthesia and oxygen services, special duty nursing when medically necessary, radiation therapy, inhalation therapy, and administration of whole blood and blood plasma; ]
[ (C) outpatient services and inpatient hospital services must include rehabilitative services and physical speech and occupational therapy; if in the opinion of a physician, the provision of those services and therapies are medically necessary, those services and therapies may not be denied, limited, or terminated if they meet or exceed treatment goals for the enrollee. For a person that is physically disabled, treatment goals may include maintenance of functioning or prevention of or slowing of further deterioration. ]
[ (5) Breast cancer and related procedures. A provision for coverage for breast cancer including the following: ]
[ (A) coverage for mastectomy must provide coverage for breast reconstruction. Breast reconstruction is subject to the same deductible or copayment applicable to mastectomy. Breast reconstruction may not be denied because the mastectomy occurred prior to the effective date of coverage. ]
[ (B) coverage for the inpatient care for an enrollee in accordance with the Insurance Code Article 21.52G. ]
[ (6) Mental health services. A provision that provides 20 outpatient visits per enrollee per year, as may be necessary and appropriate for short-term evaluative or crisis intervention mental health services, or both. ]
[ (7) Mother and newborn child. A provision for maternity benefits must provide care for an enrollee and her newborn child as described in the Insurance Code Article 21.53F. ]
[ (8) Physician services. A provision that physician services (including consultant and referral services by a physician) must be provided by a licensed physician, or if a service of a physician may also be provided under applicable state law by other health providers, an HMO may provide the service through these other health providers. ]
[ (9) Preventive health services. A provision for preventive health services, which must be made available to enrollees and must include at least the following: ]
[ (A) a broad range of voluntary family planning services; ]
[ (B) infertility medical services for artificial insemination, including donor-related services, without limitation as to who may be a donor. Such infertility medical services include medical treatment to diagnose and/or treat the medical causes for the infertility of the male or female enrollee. The infertility medical services appearing in §11.512(13) of this title (relating to Optional Benefits) are not considered to be basic health care services; ]
[ (C) well-child care from birth; ]
[ (D) periodic health evaluations for adults, including health risk assessments not less than once every three years for adults and annual well woman examinations; ]
[ (E) a medically recognized diagnostic examination for the detection of prostate cancer in accordance with the Insurance Code Article 21.53F; ]
[ (F) annual eye and ear examinations for children through age 17, to determine the need for vision and hearing correction; and ]
[ (G) pediatric and adult immunizations, in accord with accepted medical practice, including immunizations for each covered child from birth through the date the child is six years of age, as described in the Insurance Code Article 21.53F and §11.506(2) of this title (relating to Mandatory Contractual Provisions: Group, Individual and Conversion Agreement and Group Certificate). An HMO shall not limit benefits to enrollees for immunizations or vaccinations to circumstances in which an immunization or vaccination is administered by a pharmacist under a physician's written protocol. ]
[ (10) Transplants. A provision for benefits for kidney transplants; corneal transplants; liver transplants for children with biliary atresia and other rare congenital abnormalities; and bone marrow transplants for aplastic anemia, leukemia, severe combined immunodeficiency disease, and Wiskott-Aldrich syndrome, when medically necessary, including a provision for the payment of the donor's expenses. An HMO may not require an enrollee to travel out-of-state to receive transplant services unless the HMO obtains the informed consent of the enrollee, which explains the benefits and detriments of in-state and out-of-state options. ]
(b) In addition to the basic health care services in subsection (a) of this section, each evidence of coverage shall include coverage for the following:
(1) breast reconstruction as required by federal law if the plan provides coverage for mastectomy. Breast reconstruction is subject to the same deductible or copayment applicable to mastectomy. Breast reconstruction may not be denied because the mastectomy occurred prior to the effective date of coverage;
(2) inpatient and postdelivery care for an enrollee and her newborn child as required by federal law, if the plan provides maternity benefits; and
(3) diabetes self-management training, equipment and supplies as required in Insurance Code Article 21.53G.
(c) [b] The benefits described in subsection (a)(1)(F) and (1)(I)(ii) and (vi) [(a)(1), (5) and (9)(E) and (G)] of this section do not apply to small employer plans as defined by the Insurance Code Chapter 26.
(d) A state-mandated plan defined in §11.2(b) of this title (relating to Definitions) shall provide coverage for the basic health care services as described in subsection (a) of this section, as well as all state-mandated benefits as described in §§21.3516 21.3518 of this title (relating to State-mandated Health Benefits in Individual HMO Plans, State-mandated Health Benefits in Small Employer HMO Plans, and State-mandated Health Benefits in Large Employer HMO Plans) , and must provide the services without limitation as to time and cost.
(e) [ (c) ] Nothing in this title shall require an HMO, physician, or provider to recommend, offer advice concerning, pay for, provide, assist in, perform, arrange, or participate in providing or performing any health care service that violates its religious convictions. An HMO that limits or denies health care services under this subsection shall set forth such limitations in its evidence of coverage.
§11.509. Additional Mandatory Benefit Standards: Group Agreement Only.
Group agreements must contain the following additional mandatory provisions.
(1) (2) (No change.)
(3) Chemical dependency. A provision to provide benefits for the necessary care and treatment of chemical dependency that are not less favorable than for physical illness generally, subject to the same durational limits, dollar limits, deductibles and coinsurance factors is required for state-mandated plans defined in §11.2(b) of this title (relating to Definitions) . Dollar or durational limits which are less favorable than for physical illness generally may be set only if such limits are sufficient to provide appropriate care and treatment under the guidelines and standards adopted under the Insurance Code Article 3.51-9, §2A(d), including §§3.8001 - 3.8022 of this title (relating to Standards for Reasonable Cost Control and Utilization Review for Chemical Dependency Treatment Centers).
(A) Coverage for chemical dependency may be limited to a lifetime maximum of three separate series of treatment for each covered individual as described by the Insurance Code Article 3.51-9, §2A(b).
(B) Benefits provided shall be determined as if necessary care and treatment in a chemical dependency treatment center were care and treatment in a hospital.
(4) Osteoporosis. A provision that provides coverage to a qualified individual as defined in the Insurance Code Article 21.53C for medically accepted bone mass measurement for the detection of low bone mass and to determine the person's risk of osteoporosis and fractures associated with osteoporosis is required for state-mandated plans defined in §11.2(b) of this title .
(5) (No change.)
(6) Conditions affecting the temporomandibular joint. Group agreements, except for contracts issued to small employer plans and consumer choice plans defined in §11.2(b) of this title must include a provision that provides coverage for a condition affecting the temporomandibular joint as required by the Insurance Code Article 21.53A.
(7) Inability to undergo dental treatment. Group agreements, except for contracts issued to small employer plans and consumer choice plans defined in §11.2(b) of this title , may not exclude from coverage under the plan an enrollee who is unable to undergo dental treatment in an office setting or under local anesthesia due to a documented physical, mental, or medical reason as determined by the enrollee's physician or the dentist providing the dental care. This benefit does not require an HMO to provide dental services if dental services are not otherwise scheduled or provided as part of the benefits covered by the agreement.