28 TAC §§21.3801 - 21.3808
1. INTRODUCTION. The Commissioner of Insurance adopts new Subchapter DD, §§21.3801 - 21.3808, concerning a health benefit plan issuer's provision of enrollee eligibility statements to participating physicians and providers. Sections 21.3802 - 21.3805 are adopted with changes to the proposed text published in the August 5, 2005, issue of the Texas Register (30 TexReg 4447). Sections 21.3801 and 21.3806 - 21.3808 are adopted without changes.
2. REASONED JUSTIFICATION . SB 1149, passed by the 79th Legislature, Regular Session, enacted Insurance Code Chapter 1274 relating to the transmission of the eligibility and payment status of enrollees of health benefit plans to contracted physicians and providers. These new sections are necessary to implement Chapter 1274, which requires health benefit plan issuers to provide certain enrollee eligibility, benefit, and financial information to participating physicians and providers (hereinafter referred to collectively as "providers"), upon a participating provider's submission of the patient's name, the patient's relationship to the primary enrollee, and the patient's birth date, and certain eligibility, benefit, and financial information related to the enrollee. Consistent with SB 1149, the department consulted with the Technical Advisory Committee on Claims Processing (TACCP) at its June 30, 2005 meeting, and solicited advice prior to initiating the rulemaking process.
The department held a hearing on the proposed rules on September 7, 2005. Prior to the hearing, the department received comments from interested parties. In response to the written comments and comments from the hearing, the department has changed some of the proposed language in the text of the rule as adopted. None of the changes, however, introduce a new subject matter or affect persons in addition to those subject to the proposal as published.
Some commenters requested that the department add the enrollee's identification number to the list of required elements in the eligibility statement request set forth in proposed §21.3804 to maximize the information available to a health benefit plan issuer and to allow for a more expeditious response to the eligibility statement request. This request is inconsistent with Insurance Code §1274.002 which specifies a list of only three required elements for inclusion in an eligibility statement request: (i) patient's name, (ii) relationship to the primary enrollee, and (iii) birth date. Moreover, because Insurance Code §1274.002 includes the enrollee's identification number in the information that the health benefit plan issuer is required to provide to the requesting provider in response to an eligibility statement request, the inclusion of the identification number in the information required to be provided in the request is inconsistent with the statute. Section 21.3805(a) requires health benefit plan issuers to maintain a system able to provide eligibility statements in response to only the three items of information statutorily required for inclusion in a request. Section 21.3805(b) addresses those instances in which the issuer is unable to provide the eligibility statement based on the three items of statutorily required information. In response to a comment, the department has changed proposed §21.3805(b) to provide that if a plan issuer is initially unable to provide an eligibility statement, the health benefit plan issuer shall provide the initial negative response at the time of the patient's visit. Proposed §21.3805(b) is also changed to provide that if a plan issuer is initially unable to provide an eligibility statement and requests additional information from the provider, the health benefit plan issuer must contemporaneously request the additional information at the time the initial negative response is transmitted to the provider. Because §21.3805(b) provides that a health benefit plan issuer may not use a request for additional information to substitute for compliance with the unambiguous requirement of §21.3805(a) that the issuer provide an eligibility statement, upon receipt of a request that complies with statutory and regulatory requirements, the department anticipates that requests for additional information should rarely be necessary.
The department also received a comment recommending that the requirements to provide information as set forth in §21.3805(c)(1)(B)-(D) apply only to health benefit plan issuers when the provider needs the information to obtain payment for covered services to be provided to the patient. Because the protection of personal information of enrollees and covered dependents is of prime importance, the department has changed these subparagraphs to require that a health benefit plan issuer provide the name, birth date, and gender of any affected covered dependents only when the provider needs such information to obtain payment for covered services.
Some commenters urged the department to modify the requirement set forth in proposed §21.3806 that a health benefit plan issuer automatically provide a written explanation every time the issuer refuses to provide protected information because such a requirement may impose an undue and unnecessary burden upon the issuer. The rule is consistent with Insurance Code §1274.002(b), which requires that the health benefit plan issuer provide information only to a participating provider authorized under state and federal law to receive personally identifiable information. The requirement that an issuer specify the reasons for its refusal to provide the information is necessary to give the provider an opportunity to determine whether the refusal is justified and to address the issuer's concerns as applicable. Thus, the requirement allows an issuer to meet its legal obligation to protect personally identifiable information while contemporaneously providing adequate protection against potential abuses of the privacy exception set forth in §21.3806.
The department has modified §21.3802(2)(F) in response to comment to clarify that the definition of "health benefit plan" for purposes of this subchapter does not include Medicare Select, Medicare Advantage, or any successor policies regulated in accordance with federal law. Also in response to comment, the department has added in §21.3802(3)(C) a specific reference to an insurance company offering a preferred provider benefit plan operating under Insurance Code Chapter 1301. This addition is to clarify that such a company is a health benefit plan issuer for purposes of this subchapter.
The department has made minor grammatical and punctuation corrections to proposed 21.3803(a) and (b). The department has corrected a typographical error in §21.3804(c) to clarify that the subsection refers to a request for enrollee benefits submitted under §21.3805(c)(2)(B).
3. HOW THE SECTIONS WILL FUNCTION. Adopted §21.3801 defines the scope of the subchapter and provides that, consistent with §1274.005, the provisions of Insurance Code §1274.002 and this subchapter do not apply to Medicaid and Children's Health Insurance Program (CHIP) plans. Section 21.3802 defines terms used within the subchapter. Section 21.3803 requires that health benefit plan issuers provide written notice to providers of the acceptable method(s) for requesting eligibility statements. The written notice is required to be delivered to providers that enter into or renew contracts with a health benefit plan issuer on or after January 31, 2006. Section 21.3803 also specifies the means by which a request for an eligibility statement may be accepted by the health benefit plan issuer. Section 21.3804 identifies the information a provider must include in a request for an eligibility statement. Section 21.3805 requires health benefit plan issuers to maintain a system that can provide eligibility statements in response to the three items of information statutorily required for a request. Section 21.3805 further details the required content of an eligibility statement and the requirement that the health benefit plan issuer provide a response to a request for an eligibility statement in such a manner as to give a provider access to the eligibility information at the time of the enrollee's visit. Section 21.3805(b) addresses those instances in which the issuer is unable to provide the eligibility statement based on the three items of statutorily required information and requires that the issuer provide the response in such instances in such a manner as to give a provider access to the response at the time of the patient's visit and provides that the issuer may contemporaneously request additional information to assist the issuer in providing the eligibility statement. An eligibility statement provided under this section is not required to be in writing and may be delivered telephonically, electronically, or by internet website portal as provided in Insurance Code §1274.002(a) and consistent with the procedures in §21.3803 for the submission of the eligibility statement request to the health benefit plan issuer.
Section 21.3806 provides that a health benefit plan issuer may refuse to provide all or a portion of an eligibility statement if applicable privacy laws prevent disclosure. Section 21.3806 also requires the health benefit plan issuer, upon refusing to provide an eligibility statement, to describe the reason(s) for refusing to provide the information. The section further requires that within three days of refusing to provide an eligibility statement, the health benefit plan issuer must also provide a written explanation of the reason(s) for refusal and identify the applicable law(s) that prevent disclosure. Section 21.3807 specifies that an eligibility statement is not a verification under §19.1724 of this title. Section 21.3808 contains a severability provision.
4. SUMMARY OF COMMENTS AND AGENCY'S RESPONSE TO COMMENTS.
§21.3802. Definitions of "health benefit plan" and "health benefit plan issuer."
Comment: Some commenters express concern that these definitions do not clearly indicate that the provisions of Subchapter DD apply to preferred provider benefit plans.
Agency Response: While the department's position is that the general language referencing "insurance companies" in proposed §21.3802(3)(C) includes insurers issuing preferred provider benefit plans, the department has added a specific reference in the definition of "health benefit plan issuers" to clarify the rule's applicability to an insurance company offering preferred provider benefit plans. Because a preferred provider benefit plan is an insurance policy as set forth in the definition of "health benefit plan" in proposed §21.3802(2), a change to the definition of that term is unnecessary.
Comment: A commenter requests that the definition of "health benefit plan" exclude Medicare Advantage plans and any successor plans that may be developed for the Medicare Program in the future.
Agency Response: The department agrees and has modified §21.3802(2)(F) to exclude Medicare Advantage or any successor policies regulated by federal law.
§21.3802. Definition of "participating provider."
Comment: A commenter believes that the definition of "participating provider" should be expressly limited to new Subchapter DD "to prevent overzealous interpretation by health plans."
Agency Response: The department disagrees that such a change is necessary, as §21.3802 indicates that all of the definitions apply to the words and terms as used in Subchapter DD. Therefore, these definitions do not apply to other subchapters.
§21.3803(b). Method for requesting eligibility statements.
Comment: A commenter expresses concern that the word "may" could lead persons to believe that a plan has discretion regarding acceptance of eligibility statement requests and asks that the word "shall" be used in its place.
Agency Response: The department disagrees that such a change is necessary because §21.3805(a) clearly states that a plan issuer "must" provide an eligibility statement upon receipt of a request. The use of the word "may" in §21.3803(b) relates to the options the plan issuer has in selecting how it may receive requests. Section 21.3803(a), however, requires issuers to communicate to providers the acceptable methods for making such requests.
§21.3804. Requests for eligibility statements.
Comment: A commenter supports the department's proposed new subsection (b), which limits the information required for inclusion in an eligibility statement request to three elements. Other commenters believe that the department should expand the list of required elements in a request to include all information on a patient's identification card, if available or, at a minimum, the enrollee's identification number. The commenters believe that this information will assist the issuer in providing an eligibility statement in an expeditious manner while ensuring accuracy and privacy protection.
Agency Response: The department appreciates the supportive comment regarding the content of an eligibility request. Insurance Code §1274.002 limits the information required for inclusion in a request for an eligibility statement to the three information elements specified in §21.3804(b) and does not include the identification number. Instead, Insurance Code §1274.002 specifically requires that issuers provide the enrollee's identification number in response to a request. Thus, the statute does not support a requirement that providers include the identification number as part of the initial request. While an issuer may not routinely require additional information, providers may choose to furnish available additional information to enable issuers to identify enrollees' eligibility information more quickly and accurately.
§21.3805. Requirement to provide eligibility statements
Comment: A commenter notes that the intent of the statute and the rules is for the plan to provide the required information as soon as possible after a phone call from a physician or provider and asks whether the response can be verbal and whether the response must be provided within the plan's normal business hours.
Agency Response: Insurance Code §1274.002 specifically contemplates telephonic exchanges of eligibility information. Therefore, an issuer may respond verbally to a request for an eligibility statement. Insurance Code §1274.002(a) governs the timeframe for a response to a request for an eligibility statement. An issuer must provide the information in order to allow a provider to determine the patient's eligibility status at the time of the patient's visit and must be available to both receive and respond to requests for eligibility statements during the issuer's normal business hours.
§21.3805(b). Requirement to provide eligibility statements.
Comment: A commenter states that there should be a time limitation on a health benefit plan issuer's ability to request additional information in response to a request for an eligibility statement and provides some suggested language.
Agency Response: The department agrees that if a plan issuer is initially unable to provide an eligibility statement and requests additional information from the provider, the health benefit plan issuer should provide the initial negative response and the request for additional information within the same time frame as is required for the eligibility statement. The department has changed §21.3805(b) accordingly.
§21.3805(c)(1)(B)-(D). Content of an eligibility statement.
Comment: A commenter recommends that these subparagraphs be contingent upon whether the information is necessary to obtain payment for covered services provided to the patient.
Agency Response: The department agrees and has changed the subparagraphs accordingly. The changes limit an issuer's obligation to provide information regarding covered dependents to only those circumstances when provision of the eligibility information is necessary to obtain payment for services to be rendered. Incorporating a "minimum necessary standard" into this section is consistent with the HIPAA Privacy Regulation at 42 C.F.R. §164.502(b), and will effectively limit the burden on an issuer to provide an explanation regarding applicable privacy laws as set forth in §21.3806.
§21.3805(c)(2)(A). Content of an eligibility statement.
Comment: A commenter asks whether the obligation to provide individual excluded benefits or limitations requires the plan to provide the enrollee's individual personal information that is provided to an employer for group coverage. Because SB 1149 applies only to group policies, the commenter seeks clarification as to the type of information that is being requested for individuals.
Agency Response: In the context of §21.3805(c)(2)(A), the term "group" refers to an exclusion that is applicable to all persons covered under the group policy, and the term "individual" refers to any exclusion that applies to an individual enrollee, such as a preexisting condition exclusion.
§21.3806. Privacy issues.
Comment: A commenter requests that the department modify the section on privacy issues to require health benefit plan issuers to obtain whatever authorization is necessary under applicable federal and state law to disclose a complete eligibility statement to a requesting physician or provider or strike the section in its entirety. Another commenter requests that the department caution carriers against pretext refusals and remind carriers that HIPAA privacy standards may not provide a blanket rationale for denial of eligibility statements. Other commenters believe that the requirement that issuers provide a written explanation every time they refuse to provide protected health information (e.g., name, birth date, and gender of other covered individuals) to a requesting physician or provider is unduly burdensome and unnecessary. These commenters request that such an explanation be required only upon a physician or provider's request.
Agency Response: The department disagrees that the rule requires the plan issuer to obtain an authorization to disclose the requested information. Section 21.3806 is consistent with Insurance Code §1274.002(b), which states that the plan issuer must provide the information "only to a participating provider who is authorized under state and federal law to receive personally identifiable information." SB 1149 does not contain a provision that requires the health plan issuer to obtain any authorization. In addition, the rule requires a health plan issuer that refuses to provide information to specify the reasons for refusing to provide the information. The department believes that the requirement that issuers provide a written explanation of the reasons for refusing to provide certain eligibility information is necessary to ensure that requesting physicians and providers have an opportunity to evaluate and address any identified privacy concerns and also to protect against potential abuses of the privacy exception. The department believes that this requirement allows an issuer to meet its legal obligation to protect personally identifiable information while at the same time providing adequate protection against such potential abuses. To ensure that these goals are met, issuers must provide such explanations whenever they are unable to provide the requested information, rather than only upon request. In addition, it is important to note that adopted §21.3805(c) specifies that the name, birth date, and gender of other covered individuals are required as part of an eligibility statement only if the information is necessary to obtain payment for covered services. Because an issuer will not have to provide an explanation for every request, the requirement should not be unduly burdensome.
5. NAMES OF THOSE COMMENTING FOR AND AGAINST THE SECTIONS.
For: None.
For with changes: America's Health Insurance Plans, Texas Association of Health Plans, Texas Association of Life and Health Insurers, and Texas Medical Association.
Against: Texas Hospital Association.
6. STATUTORY AUTHORITY. The new sections are adopted under Insurance Code Chapter 1274 and §36.001. Chapter 1274 requires health benefit plan issuers to provide statutorily specified enrollee eligibility statements to participating providers upon request, and §1274.004 requires the Commissioner of Insurance to adopt rules as necessary to implement the chapter. Section 1274.005 provides that if the Commissioner, in consultation with the Commissioner of Health and Human Services, determines that a provision of §1274.002 will cause a negative fiscal impact on the state with respect to providing benefits or services under Subchapter XIX, Social Security Act (42 U.S.C. Section 1396 et seq.), or Subchapter XXI, Social Security Act (42 U.S.C. Section 1397aa et seq.), the Commissioner of Insurance by rule shall waive the application of that provision to the providing of those benefits or services. 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.
7. TEXT.
§21.3801. Scope and Applicability. This subchapter applies to a health benefit plan issuer that enters into or renews a contract with a participating provider on or after January 31, 2006. The provisions of Insurance Code §1274.002 and this subchapter are not applicable to Medicaid and Children's Health Insurance Program (CHIP) plans provided by a health benefit plan issuer to persons enrolled in the medical assistance program established under Chapter 32, Human Resources Code, or the child health plan established under Chapter 62, Health and Safety Code.
§21.3802. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise.
(1) Enrollee--An individual who is eligible for coverage under a health benefit plan, including a covered dependent.
(2) Health benefit plan--A group, blanket, or franchise insurance policy, a certificate issued under a group policy, a group hospital service contract, or a group subscriber contract or evidence of coverage issued by a health maintenance organization that provides benefits for health care services. The term does not include:
(A) accident-only or disability income insurance coverage or a combination of accident-only and disability income insurance coverage;
(B) credit-only insurance coverage;
(C) disability insurance coverage;
(D) coverage only for a specified disease or illness;
(E) Medicare services under a federal contract;
(F) Medicare supplement, Medicare Select, Medicare Advantage, or any successor policies regulated in accordance with federal law;
(G) long-term care coverage or benefits, nursing home care coverage or benefits, home health care coverage or benefits, community-based care coverage or benefits, or any combination of those coverages or benefits;
(H) coverage that provides only dental or vision benefits;
(I) coverage provided by a single service health maintenance organization;
(J) coverage issued as a supplement to liability insurance;
(K) workers' compensation insurance coverage or similar insurance coverage;
(L) automobile medical payment insurance coverage;
(M) a jointly managed trust authorized under 29 U.S.C. Section 141 et seq. that contains a plan of benefits for employees that is negotiated in a collective bargaining agreement governing wages, hours, and working conditions of the employees that is authorized under 29 U.S.C. Section 157;
(N) hospital indemnity or other fixed indemnity insurance coverage;
(O) reinsurance contracts issued on a stop-loss, quota-share, or similar basis;
(P) liability insurance coverage, including general liability insurance and automobile liability insurance coverage; or
(Q) coverage that provides other limited benefits specified by federal regulations.
(3) Health benefit plan issuer--Any entity that issues a health benefit plan, including:
(A) a health maintenance organization operating under Insurance Code Chapter 843;
(B) an approved nonprofit health corporation that holds a certificate of authority under Insurance Code Chapter 844;
(C) an insurance company, including an insurance company offering a preferred provider benefit plan under Insurance Code Chapter 1301;
(D) a group hospital service corporation operating under Insurance Code Chapter 842;
(E) a fraternal benefit society operating under Insurance Code Chapter 885; or
(F) a stipulated premium company operating under Insurance Code Chapter 884.
(4) Health care provider--
(A) a person, other than a physician, who is licensed or otherwise authorized to provide a health care service in this state, including:
(i) a pharmacist or dentist; or
(ii) a pharmacy, hospital, or other institution or organization;
(B) a person who is wholly owned or controlled by a provider or by a group of providers who are licensed or otherwise authorized to provide the same health care service; or
(C) a person who is wholly owned or controlled by one or more hospitals and physicians, including a physician-hospital organization.
(5) Participating provider--
(A) a physician or health care provider who contracts with a health benefit plan issuer to provide medical care or health care to enrollees in a health benefit plan; or
(B) a physician or health care provider who accepts and treats a patient on a referral from a physician or provider described by subparagraph (A) of this paragraph.
(6) Physician--
(A) an individual licensed to practice medicine in this state under Subtitle B, Title 3, Occupations Code;
(B) a professional association organized under the Texas Professional Association Act (Article 1528f, Vernon's Texas Civil Statutes);
(C) a nonprofit health corporation certified under Chapter 162, Occupations Code;
(D) a medical school or medical and dental unit, as defined or described by §§61.003, 61.501, or 74.601, Education Code, that employs or contracts with physicians to teach or provide medical services or employs physicians and contracts with physicians in a practice plan; or
(E) another entity wholly owned by physicians.
(7) Primary enrollee--The individual who is the certificate holder and whose employment or other membership status, except for family dependency, is the basis for eligibility under the health benefit plan.
§21.3803. Method for Requesting Eligibility Statements.
(a) Beginning January 31, 2006, a health benefit plan issuer shall, in writing, communicate to each participating provider that enters into or renews a contract with the health benefit plan issuer, the method or methods by which the provider may request an eligibility statement. The health benefit plan issuer may communicate the method or methods a provider may use to request an eligibility statement in existing materials, such as a provider manual, so long as the information is clearly identified and properly captioned with an underlined, bold-faced, or otherwise conspicuous heading.
(b) A health benefit plan issuer may accept a request for an eligibility statement by:
(1) telephone;
(2) Internet website portal; or
(3) other electronic means.
§21.3804. Requests for Eligibility Statements.
(a) A participating provider may, prior to providing services to an enrollee, request an eligibility statement using a method designated by the health benefit plan issuer.
(b) A request under subsection (a) of this section must include:
(1) the enrollee's full name;
(2) the enrollee's relationship to the primary enrollee; and
(3) the enrollee's birth date.
(c) If the participating provider is seeking information concerning the enrollee's benefits under §21.3805(c)(2)(B) of this subchapter (relating to Requirement to Provide Eligibility Statements), the request must also include a description of the specific type or category of service.
§21.3805. Requirement to Provide Eligibility Statements.
(a) A health benefit plan issuer shall maintain a system to enable it to provide eligibility statements to participating providers using the information provided under §21.3804(b) and (c) of this subchapter (relating to Requests for Eligibility Statements). On receipt of a request for an eligibility statement that complies with §21.3804 of this subchapter, a health benefit plan issuer must provide an eligibility statement to the participating provider allowing the provider access to the information at the time of the enrollee's visit.
(b) If the health benefit plan issuer is unable to provide an eligibility statement, the health benefit plan issuer shall notify the participating provider such that the provider receives the response at the time of the patient's visit and may contemporaneously request additional information to assist the health benefit plan issuer in providing an eligibility statement. A health benefit plan issuer may not use a request for additional information to satisfy the requirement that the issuer maintain a system to provide eligibility statements using the information described in §21.3804(b) and (c) of this subchapter.
(c) An eligibility statement provided under this section shall include information that will enable the participating provider to determine at the time of the request:
(1) the enrollee's identification and eligibility under the health benefit plan, including:
(A) the enrollee's identification number assigned by the health benefit plan issuer;
(B) the name of the enrollee and, if necessary to obtain payment for services to be provided to the patient, the names of any affected covered dependents;
(C) the birth date of the enrollee and, if necessary to obtain payment for services to be provided to the patient, the birth dates of any affected covered dependents;
(D) the gender of the enrollee and, if necessary to obtain payment for services to be provided to the patient, the gender of any affected covered dependent; and
(E) the current enrollment and eligibility status of the enrollee under the health benefit plan;
(2) the enrollee's benefits, including:
(A) excluded benefits or limitations, both group and individual; and
(B) if the participating provider included the information required by §21.3804(c) of this subchapter, whether the specific type or category of service is a benefit under the policy; and
(3) the enrollee's financial information, including:
(A) copayment requirements, if any; and
(B) the unmet amount of the enrollee's deductible or enrollee financial responsibility.
(d) The information required to be provided under this section is limited to information in the possession of and maintained by the health benefit plan issuer in the ordinary course of business at the time of a request for an eligibility statement.
(e) A health benefit plan issuer may not directly or indirectly charge a participating provider for an eligibility statement.
§21.3806. Privacy Issues. A health benefit plan issuer may refuse to provide all or part of an eligibility statement if applicable state or federal law prevents the disclosure of an enrollee's or dependent's personally identifiable information to the requesting participating provider. A health benefit plan issuer that refuses to provide all or part of an eligibility statement shall provide a response to the request for an eligibility statement indicating the reason(s) for refusing to provide the information. Within three days of refusing to provide an eligibility statement under this section, a health benefit plan issuer shall provide a written response indicating the reason(s) for refusing to provide the information and describing the particular state or federal law provision(s) that prevent the disclosure.
§21.3807. Effect of Eligibility Statement. An eligibility statement provided under this subchapter is not a verification under §19.1724 of this title (relating to Verification).
§21.3808. Severability. If a court of competent jurisdiction holds that any provision of this subchapter is inconsistent with any statutes of this state, is unconstitutional, or is invalid for any reason, the remaining provisions of this subchapter shall remain in full effect.