The Commissioner of Insurance adopts new §21.2826, concerning waiver of certain statutory provisions regarding prompt payment of claims as to Medicaid and Children´s Health Insurance Program (CHIP) plans. The section is adopted without changes to the proposed text as published in the October 31, 2003 issue of the Texas Register (28 TexReg 9400) and will not be republished.
The new section is necessary to implement, in part, SB 418, which contained numerous provisions regarding the prompt payment of claims by health maintenance organizations (HMOs) and preferred provider carriers (hereinafter collectively "carriers"). Among other things, SB 418 added new Texas Insurance Code Article 21.30 concerning waiver of requirements for certain programs administered by the Health and Human Services Commission (HHSC). The purpose of this section is to implement this provision as requested by HHSC.
Pursuant to the emergency adoption provisions of Senate Bill (SB) 418, 78 th Regular Session, the department adopted §21.2826 on an emergency basis effective August 16, 2003, which was the date that certain provisions of SB 418 went into effect. The emergency section will be withdrawn at the time this adoption becomes effective.
Article 21.30 provides that if the commissioner of insurance, in consultation with the HHSC commissioner, determines that any of the stated provisions of Texas Insurance Code Article 3.70-3C, Chapter 843, or Article 21.52Z will cause a negative fiscal impact to the state with respect to providing benefits or services under the Medicaid or CHIP programs, the insurance commissioner shall by rule waive application of those provisions. The HHSC commissioner has advised the commissioner of insurance that application of the provisions of SB 418 to Medicaid and CHIP plans would have a negative fiscal impact on the state and has requested a waiver of the statute and rules for those plans. Based on this, the commissioner has determined that there would be a negative fiscal impact on the state and has adopted §21.2826, which provides that the provisions of the statute and rules stated therein do not apply to Medicaid and CHIP plans provided by a carrier to persons enrolled in those programs.
Comment:A commenter is concerned with the application of a waiver to a for-profit HMO administering Texas Medicaid benefits. The commenter states that it has experienced claim payment delays and poor responses to inquiries from for-profit HMOs and the only incentive for these HMOs to pay claims promptly is the potential penalty of SB 418. The commenter states its belief that existing contracts between HHSC and for-profit HMOs supersede HB 610 and SB 418 and therefore no prompt payment language exists. Exempting for-profit HMOs from the provisions of SB 418, the commenter asserts, would greatly jeopardize the commenter´s ability to continue to treat a segment of society in need of health care.
Agency Response: SB 418 provides that the commissioner "shall" waive application of the provisions of SB 418 if, after consultation with the HHSC commissioner, he determines the provisions of SB 418 would have a negative fiscal impact on the state with respect to the provision of benefits or services under Medicaid or CHIP. The HHSC commissioner indicated the bill´s requirements would have a negative fiscal impact on the state with respect to the provision of those benefits and services. SB 418 does not exclude for-profit HMOs from application of the waiver. Therefore, as directed by statute, the commissioner is adopting the waiver provision in this rule that applies to all HMOs providing benefits and services under Medicaid and CHIP programs, including for-profit HMOs.
NAMES OF THOSE COMMENTING FOR AND AGAINST THE SECTION.
Against:Texas Health Care, P.L.L.C.
The amendments are adopted under Texas Insurance Code Article 21.30 and §36.001. Article 21.30 requires the commissioner of insurance, in consultation with the HHSC commissioner, to determine whether certain provisions of SB 418 will have a negative fiscal impact on the state with respect to the provision of benefits or services under Medicaid or CHIP programs and, if so, to waive application of those provisions as to the Medicaid or CHIP plans. Section 36.001 of the Insurance Code 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.
§21.2826. Waiver. The provisions of Texas Insurance Code Articles 3.70-3C, Sections 3A, 3C-3J, 10-12; and 21.52Z; Chapter 843, Subchapter J and Sections 843.209 and 843.319; as well as this subchapter and §§3.3703(20), 11.901(10), 19.1723, and 19.1724 of this title (relating to Contracting Requirements, Required Provisions, Preauthorization and Verification, respectively) are not applicable to Medicaid and Children's Health Insurance Program (CHIP) plans provided by an HMO or preferred provider carrier 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.