28 TAC §21.3701
The Texas Department of Insurance proposes new Subchapter CC, §21.3701, concerning waiver of electronic filing requirements. The new section is necessary to implement the provisions of Senate Bill (SB) 418, 78th Regular Legislative Session. Specifically, SB 418 added Insurance Code Article 21.52Z, which ensures that carriers that wish to implement an electronic filing requirement for contracted physicians and providers include a process by which a physician or provider may seek a waiver of the requirement. Proposed §21.3701 identifies the criteria that must be used by a carrier in considering a physician's or provider´s request for a waiver of a carrier´s electronic filing requirements. The proposed section addresses the statutory opportunity for appellate review by the Commissioner by providing a procedure for appeal to the Deputy Commissioner of the HMO Division and ultimately to the Senior Associate Commissioner of Life, Health and Licensing in the event that a carrier does not grant a waiver or imposes restrictions, conditions or limitations on a waiver.
Kimberly Stokes, Senior Associate Commissioner of Life, Health and Licensing, has determined that for each year of the first five years the proposed section 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 section is in effect, the public benefits anticipated as a result of the proposed section will be a set of standards by which a physician´s or provider´s request for waiver of electronic filing requirements may be fairly assessed and determined, along with a procedure by which appeals from waiver determinations will be rendered.
The probable economic costs to persons required to comply with the proposed section are primarily a result of SB 418. The statute specifically allows carriers to require health care providers to submit a claim electronically. It also requires the Commissioner to establish certain named circumstances under which waiver is required, and allows physicians or providers that have been denied waivers or issued waivers with restrictions, conditions or limitations the opportunity to appeal to the Commissioner. Detailed requirements contained in the proposed section alleviate any potential costs associated with requesting an appeal that are in addition to those required by statute. A physician, provider or carrier that decides to request an appeal to the Deputy Commissioner of the HMO Division or request reconsideration of that appeal determination to the Senior Associate Commissioner of Life, Health and Licensing may choose to attend a hearing at the department or participate in a hearing via telephone. The same cost considerations apply regardless of the size of the carrier. It is neither legal nor feasible to waive the requirements of the section for small or otherwise disadvantaged health care professionals or facilities as the Legislature specifically designed the statute to support small or otherwise disadvantaged businesses by granting them access to the electronic waiver process. It is also neither legal nor feasible to waive the requirements of the section for carriers that might be small or micro-businesses because the statute applies to all carriers who choose to require electronic filing.
To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on June 7, 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, 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 section is proposed under the Insurance Code Article 21.52Z, and §§31.041 and 36.001. Article 21.52Z requires that a contract between the issuer of a health benefit plan and a health care professional or health care facility provide for a waiver of any electronic submission requirement established under the article, and it allows the Commissioner to adopt necessary implementation rules. Also, the article specifies that any health care professional or health care facility that is denied a waiver by a health benefit plan may appeal the denial to the Commissioner, and the Commissioner shall determine whether a waiver must be granted. The role of the Deputy Commissioner of the HMO Division and the Senior Associate Commissioner of Life, Health and Licensing in the new section's appeal process stems from the Commissioner's authority, granted by Section 31.041, to delegate powers and duties to other personnel. Section 36.001 provides that the Commissioner of Insurance 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.
§ 21.3701. Electronic Claims Filing Requirements.
(a) The purpose of this section is to implement Article 21.52Z of the Insurance Code. This section applies to a contract between an issuer of a health benefit plan and a health care professional or health care facility (hereinafter referred to as "physicians or providers").
(b) Consistent with Insurance Code Article 21.52Z and this section, the issuer of a health benefit plan may, by contract, require physicians and providers to electronically submit the following:
(1) health care claims or equivalent encounter information;
(2) referral certifications; and/or
(3) any authorization or eligibility transactions.
(c) An issuer of a health benefit plan must give 90 calendar days written notice prior to requiring electronic filing of any information described in subsection (b) of this section.
( d) A contract between the issuer of a health benefit plan and a physician or provider that requires electronic submission of any information described in subsection (b) of this section shall include a provision stating that in the event of a systems failure, or a catastrophic event as defined in §21.2803 of this title (relating to Definitions), that substantially interferes with the business operations of the physician, provider or issuer of the health benefit plan, the physician or provider may submit non-electronic claims in accordance with the requirements in this subchapter. A physician or provider shall provide written notice of the physician ´s or provider´s intent to submit non - electronic claims to the issuer of the health benefit plan within five calendar days of the catastrophic event or systems failure.
(e) A contract between the issuer of a health benefit plan and a physician or provider that requires electronic submission of the information described in subsection (b) of this section shall include a provision allowing for a waiver of the electronic submission requirements in the following circumstances:
(1) No method available for the submission of claims in electronic form. This exception applies to situations in which the federal standards for electronic submissions (45 C.F.R., Parts 160 and 162) do not support all of the information necessary to process the claim.
(2) The operation of small physician and provider practices. This exception applies to those physicians and providers with fewer than ten full-time-equivalent employees, consistent with 42 C .F.R. § 424.32(d)(1)(viii).
(3) Demonstrable undue hardship, including fiscal or operational hardship.
(4) Any other special circumstances that would justify a waiver.
(f) The physician´s or provider´s request for waiver must be in writing and must include documentation supporting the issuance of a waiver.
(g) Upon receipt of a request for a waiver from a physician or provider, the issuer of a health benefit plan shall, within 14 calendar days, issue or deny a waiver.
(h) A waiver or denial of a waiver must be issued in writing to the requesting physician or provider. A written waiver shall contain any restrictions, conditions or limitations related to the waiver. A written denial of a request for a waiver or the issuance of a qualified or conditional waiver shall include the reason for the denial or any restrictions, conditions or limitations, and notice of the physician´s or provider´s right to appeal the determination to the Texas Department of Insurance.
(i) A physician or provider that is denied a waiver of the electronic submission requirements, or granted a waiver with restrictions, conditions or limitations, may, within 14 calendar days of receipt, appeal the waiver determination. The request for appeal and accompanying documentation shall be sent to the Deputy Commissioner of the HMO Division at P.O. Box 149104, Austin, Texas 78714-9104 and to the issuer of the health benefit plan. The information shall include:
(1) the physician´s or provider´s initial request for a waiver sent to the issuer of the health benefit plan, including the documentation required by subsection (f) of this section;
(2) the waiver determination received from the issuer of the health benefit plan;
(3) any additional documentation supporting issuance of a waiver or removal of restrictions, conditions or limitations of a granted waiver; and
(4) any additional information necessary for the determination of the appeal.
(j)Upon receipt of notice of a request for appeal under this section, an issuer of a health benefit plan shall, within 14 calendar days, submit to the Deputy Commissioner of the HMO Division and to the physician or provider:
(1) documentation supporting the waiver determination to the physician or provider; and
(2) any additional information necessary for the determination of the appeal.
( k ) The Deputy Commissioner of the HMO Division may request additional information from either party and may request the parties to appear at a hearing. Either party may choose to attend a hearing conducted at the department or participate in a hearing via telephone.
( l ) Upon receipt of all information required by subsections (i) and (j) of this section, the Deputy Commissioner of the HMO Division shall issue a determination within 14 calendar days of the later of the receipt of all necessary information or the conclusion of the hearing.
( m ) Either party may request a hearing before the Senior Associate Commissioner of the Life, Health and Licensing Program for reconsideration of the Deputy Commissioner of the HMO Division´s determination. Either party may choose to attend a hearing conducted at the department or participate in a hearing via telephone. A request for reconsideration must be received by the Senior Associate Commissioner at P.O. Box 149104 , Austin , Texas 78714-9104 within 14 calendar days of receiving notice of the appeal determination.
( n ) The issuer of a health benefit plan may not refuse to contract or to renew a contract with a physician or provider based in whole or in part on the physician or provider requesting or receiving a waiver, appealing a waiver determination, or requesting reconsideration of an appeal determination under this section.
( o ) This section applies to:
(1) a contract between a physician or provider and an issuer of a health benefit plan that requires electronic submission of the information described in subsection (b) of this section and entered into or renewed on or after July 1, 2004; and
(2) existing contracts to the extent that any contract provisions related to electronic submission of the information described in subsection (b) of this section are made applicable to a physician or provider on or after July 1, 2004 .