28 TAC §3.3313
1. INTRODUCTION.
The Texas Department of Insurance proposes an amendment to §3.3313, concerning filing requirements for Medicare supplement insurance advertisements requiring Departmental review. The proposed amendment to §3.3313(1) clarifies that an issuer providing Medicare supplement insurance benefits need not submit to the Department for review institutional advertisements that merely reference Medicare supplement insurance as a line of coverage offered by the issuer. The Department has determined that institutional advertisements that merely reference Medicare supplement insurance as a line of coverage are routinely accepted by the Department without objections and are not currently a source of false, misleading, or deceptive marketing practices. Therefore, the proposed amendment is necessary to more effectively utilize Departmental resources without compromising consumer protection. Additionally, the proposal will provide more efficient and cost-effective advertising filing requirements for Medicare supplement insurance issuers.
2. FISCAL NOTE. Audrey Selden, Senior Associate Commissioner, Consumer Protection Division, has determined that, for each year of the first five years the proposed amendment is in effect, there will be no fiscal impact on state or local government as a result of enforcing or administering the proposal. Ms. Selden has also determined that there will be no measurable effect on local employment or the local economy as a result of the proposal.
3. PUBLIC BENEFIT/COST NOTE. Ms. Selden also has determined that, for each year of the first five years the proposal is in effect, the amendment will decrease the Department's costs of regulating the marketing practices of issuers providing Medicare supplement insurance by reducing the number of institutional advertisements that need to be reviewed, which will enable the Department to redirect its resources to advertising practices that are a more frequent source of false, misleading, or deceptive marketing practices. In addition, removing the submission requirement for advertisements that merely reference Medicare supplement insurance as a line of coverage will decrease the number of advertisement submissions for issuers providing Medicare supplement insurance benefits. The proposed amendment does not impose additional requirements on any individual or entity, and therefore, there are no costs required to comply with the proposal.
4. ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO BUSINESSES. As required by the Government Code §2006.002(c), the Department has determined that the proposed amendment will not have an adverse economic effect on small or micro businesses. The proposed amendment does not impose additional requirements on any individual or entity, and therefore, there are no costs required to comply with the proposal. The Department anticipates a decrease in regulatory costs for Medicare supplement insurance issuers, including any small or micro business issuers. In accordance with the Government Code §2006.002(c), the Department has therefore determined that a regulatory flexibility analysis is not required because the proposal will not have an adverse impact on small or micro businesses.
5. TAKINGS IMPACT ASSESSMENT. The Department has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.
6. REQUEST FOR COMMENTS. To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on June 2, 2008, 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 comments must be submitted simultaneously to Jack Evins, Director, Advertising Unit, Consumer Protection Division, Mail Code 111-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. Any request for a public hearing should be submitted separately to the Office of the Chief Clerk before the close of the public comment period. If a hearing is held, written and oral comments presented at the hearing will be considered.
7. STATUTORY AUTHORITY. The amendment is proposed pursuant to Insurance Code §§1652.001, 1652.005, 36.003, and 36.001. Section 1652.001 provides that an approved regulatory program for Medicare supplement benefit plans means a state regulatory program that complies with the requirements of 42 U.S.C. 1395ss. Section 1652.005 authorizes the Commissioner of Insurance to adopt reasonable rules necessary and proper to implement Chapter 1652, including rules adopted in accordance with federal law relating to the regulation of Medicare supplement benefit plan coverage necessary for the state to obtain or retain federal certification as a state with an approved regulatory program. Subsection (b)(3) of 42 U.S.C. 1395ss requires review and approval of Medicare supplement advertising material to the extent authorized by state law. Section 36.003 provides that the Commissioner may not adopt rules restricting advertising or competitive bidding by a person regulated by the Department except to prohibit false, misleading, or deceptive practices. Section 36.001 authorizes the Commissioner of Insurance to 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.
8. CROSS REFERENCE TO STATUTES. The following statute is affected by this proposal:
Rule Number Statute
§3.3313 Insurance Code Chapter 1652
9. TEXT.
§3.3313. Filing Requirements for Advertising. A Medicare supplement policy shall not be deemed to meet the standards and requirements set forth in this subchapter unless the filing company has complied with the requirements of the following paragraphs.
(1) Every issuer providing Medicare supplement insurance or benefits in this state shall provide to the department for review a copy of any Medicare supplement advertisement, as defined in §21.102 of this title (relating to Scope), other than an institutional advertisement, as defined in §21.102(6) that only references "Medicare supplement" as a line of coverage offered, but which does not otherwise describe Medicare supplement insurance or benefits [ used to promote a policy which is approved under the provisions of this subchapter]. The copy of the advertisement shall be submitted to the department no later than 60 days prior to its first use. At the expiration of the 60-day period provided by this paragraph, any advertisement filed with the department shall be deemed acceptable, unless before the end of that 60-day period the department has notified the entity of its nonacceptance.
(2) All advertisements shall comply with all applicable federal and state laws and shall be submitted in accordance with §21.120 of this title (relating to Filing for Review). This section does not require prior departmental approval of the advertisement. Nothing in this section relieves any person from otherwise complying with all applicable laws or from any sanction imposed by law.