The Texas Department of Insurance (Department) has received inquiries about whether an out-of-network doctor or other health care provider may balance bill an injured employee, whose employer contracts to provide health care services for an employee's compensable injuries through a certified health care network (certified network). This bulletin reminds health care providers that, under Texas Labor Code (Labor Code) §413.042, they may not balance bill an injured employee for health care services provided to treat a workers' compensation compensable injury except as permitted under Texas Insurance Code (Insurance Code) Chapter 1305 or Title 5 Subtitle A Labor Code, also cited as the Texas Workers' Compensation Act (the Act). In addition, this bulletin reminds carriers that provide certified network coverage of their obligation to reimburse out-of-network health care providers as required under subsections (b), (c), and (d) of Insurance Code §1305.153 and reminds certified networks of their obligation to abide by their Department-approved access plan as required by Insurance Code §1305.302(h).
Out-of-Network Health Care Provider Obligations
Under Labor Code §413.042, a health care provider may not pursue a private claim against a workers' compensation claimant for all or part of the cost of a health care service provided to the claimant by the provider unless: (1) the injury is finally adjudicated not compensable under the Act; or (2) the employee violates Labor Code §408.022 relating to the selection of a doctor and the doctor was unaware of the violation at the time services were rendered. Similarly, this balance billing prohibition applies to an out-of-network health care provider who has provided health care to an injured employee who is subject to certified network health care requirements. The prohibition applies unless: (1) the injury is finally adjudicated not compensable under the Act, or (2) the employee obtained health care without network approval, except for the following care described under Insurance Code §1305.006:
(1) emergency care; and
(2) health care provided to an injured employee who lives outside the service area of any certified network established by the carrier or with which the carrier has a contract.
The balance billing prohibition also applies to an out-of-network provider who provides health care pursuant to a referral from the injured employee's treating doctor if medically necessary services are not available within the network.
A health care provider who improperly bills or balance bills in violation of Labor Code §413.042 commits an administrative violation and is subject to possible enforcement action.
Carrier Obligations
Under Insurance Code §1305.153(c), a carrier must reimburse an out-of-network provider, who provides care as described by Insurance Code §1305.006, in accordance with the Act and applicable rules of the commissioner of workers' compensation. This care as described by Insurance Code §1305.006 includes:
(1) emergency care;
(2) health care provided to an injured employee who lives outside the service area of any certified network established by the carrier or with which the carrier has a contract; and
(3) health care provided by an out-of-network provider pursuant to a referral from the injured employee's treating doctor that has been approved by the certified network pursuant to Insurance Code §1305.103(e).
In addition, under Insurance Code §1305.153(b), if a carrier or certified network has preauthorized a health care service, the carrier (or certified network or the certified network's agent or other representative) is prohibited from denying payment for the reason of medical necessity.
Health care provider reimbursement policies and guidelines adopted by the commissioner of workers' compensation must be followed in accordance with subsections (c) and (d) of Insurance Code §1305.153 except that, if the carrier has a contract with the provider and that contract includes a specific fee schedule, under Labor Code §413.011(d) the carrier may pay fees to the provider that are inconsistent with the fee guidelines.
Certified Health Care Network Obligations
A certified network is required under Insurance Code §1305.302(b) to have adequate numbers of treating doctors and specialists available and accessible to injured employees to ensure choice, access, and quality of care. If any health care service or a certified network provider is not available as statutorily required, the certified network must have an access plan approved by the Department under Insurance Code §1305.302(h) and Title 28 Texas Administrative Code §10.80(f). A certified network is expected, in accordance with Insurance Code subsections (b) and (h) of Insurance Code §1305.302 and Title 28 Texas Administrative Code §10.80(f), to abide by its Department-approved access plan and approve out-of-network health care. If any hospital-based providers providing care in the certified network's contracted hospitals are not contracted with the certified network, the access plan must address how the certified network will provide hospital-based services. Under a scenario in which an injured employee enters a hospital for a preauthorized surgical procedure, the Department expects that the certified network or carrier will identify any out-of-network hospital-based providers, such as anesthesiologists, radiologists, or pathologists, who provide services and reimburse those providers pursuant to subsections (b), (c) and (d) of Insurance Code §1305.153, the Act, and applicable rules of the commissioner of workers' compensation. Failure of the certified network or carrier to properly reimburse out-of-network providers in violation of subsections (b), (c) and (d) of Insurance Code §1305.153 or to maintain network adequacy in violation of subsections (b) and (h) of Insurance Code §1305.302 will be subject to investigation by the Department and possible enforcement action.
If you have any questions regarding this bulletin, please contact Margaret Lazaretti, Deputy Commissioner, Health and Workers' Compensation Network Certification & Quality Assurance Division, at margaret.lazaretti@tdi.state.tx.us or at 512-322-4215.
Jennifer Ahrens
Associate Commissioner
Life, Health & Licensing