TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 187. PROCEDURAL RULES

SUBCHAPTER J. PROCEDURES RELATED TO OUT-OF-NETWORK HEALTH BENEFIT CLAIM DISPUTE RESOLUTION

22 TAC §§187.87 - 187.89

The Texas Medical Board (Board) proposes amendments to §187.87, concerning Definitions, §187.88, concerning Complaint Process and Resolution and §187.89, concerning Notice of Availability of Mandatory Mediation.

The amendments to §187.87 add and update definitions in order to ensure the rules are consistent with Chapter 1467 of the Texas Insurance Code, amended by Senate Bill 507, passed by the 85th legislative session.

The amendments to §187.88, change language expanding the providers and facilities eligible for participation in the balance billing mediation process, in order to ensure the rules are consistent with Chapter 1467 of the Texas Insurance Code, amended by Senate Bill 507, passed by the 85th legislative session.

The amendments to §187.89, change language expanding the providers and facilities eligible for participation in the balance billing mediation process, and delete unnecessary language in order to ensure the rules are consistent with Chapter 1467 of the Texas Insurance Code, amended by Senate Bill 507, passed by the 85th legislative session.

Scott Freshour, General Counsel for the Board, has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing this proposal will be to ensure rules are consistent with statutes.

Mr. Freshour has also determined that for the first five-year period the sections are in effect there will be no fiscal impact or effect on government growth as a result of enforcing the sections as proposed.

There will be no effect to individuals required to comply with the rules as proposed. There will be no effect on small or micro businesses or rural communities.

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed amendments will be in effect, Mr. Freshour has determined the following:

(1) The proposed rules do not create or eliminate a government program.

(2) Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed rules do not require an increase or decrease in fees paid to the agency.

(5) The proposed rules do not create new regulations.

(6) The proposed rules do not expand existing regulations; however, the proposed rules do limit existing regulations as described above.

(7) The proposed rules do not increase or decrease the number of individuals subject to the rules' applicability.

(8) The proposed rules do not positively or adversely affect this state's economy.

Comments on the proposal may be submitted to Rita Chapin, P.O. Box 2018, Austin, Texas 78768-2018, or e-mail comments to: rules.development@tmb.state.tx.us. A public hearing will be held at a later date.

The amendments are proposed under the authority of the Texas Occupations Code Annotated, §204.101, which provides authority for the Board to recommend adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; enforce this subtitle; and establish rules related to licensure. The amendments are further proposed under the authority of Texas Occupations Code §601.254.

No other statutes, articles or codes are affected by this proposal.

§187.87.Definitions.

The following words and terms when used in this subchapter shall have the following meanings unless the context clearly indicates otherwise.

(1) Board--Texas Medical Board.

(2) Emergency care--has the meaning assigned by the Texas Insurance Code, §1301.155(a).

(3) Emergency care provider--has the meaning assigned by the Texas Insurance Code, §1467.001(2-b).

(4) [(2)] Enrollee--An individual who is eligible to receive benefits through a preferred provider benefit plan offered by an insurer under the Insurance Code, Chapter 1301, or a health benefit plan, other than an HMO plan, under the Texas Insurance Code, Chapter 1551, 1575, or 1579.

(5) [(3)] Facility--has the meaning assigned by §324.001, Texas Health and Safety Code.

[a hospital, emergency clinic, outpatient clinic, birthing center, ambulatory surgical center, or other facility providing health care services.]

[(4) Facility-based physician ---a radiologist, an anesthesiologist, a pathologist, an emergency department physician; a neonatologist; or an assistant surgeon:]

[(A) to whom the facility has granted clinical privileges; and]

[(B) who provides services to patients of the facility pursuant to those clinical privileges.]

(6) Facility-based provider--has the meaning assigned by §1467.001, Texas Insurance Code.

(7) Health care practitioner--for the purposes of this subchapter means an individual who is licensed to provide healthcare services under the jurisdiction of the Board or Texas Physician Assistant Board.

(8) [(5)] Mediation--has the meaning assigned by §1467.001 of the Texas Insurance Code. [ a process in which an impartial mediator facilitates and promotes agreement between the insurer offering a preferred provider benefit plan or the administrator and a facility-based physician or the physician's representative to settle a health benefit claim of an enrollee pursuant to Chapter 1467 of the Texas Insurance Code.]

(9) [(6) ] Mediator--an impartial person who is appointed by the chief administrative law judge at the State Office of Administrative Hearings to conduct a mediation, pursuant to 1 TAC Chapter 167 (relating to Dispute Resolution Process Applicable to Certain Consumer Health Benefit Disputes), and Chapter 1467 of the Texas Insurance Code.

(10) [(7)] Out-of-network health benefit claim--A claim for payment for medical or health care services or supplies or a combination thereof that are furnished by a facility-based provider or emergency care provider [a physician ] that is not contracted as a preferred provider with a preferred provider benefit plan or contracted with an administrator.

(11) [(8)] Qualified health benefit claim--A health benefit claim that meets the criteria under 28 TAC §21.5010(a) and (b) (relating to Qualified Claim Criteria).

§187.88.Complaint Process and Resolution.

(a) A complaint relating to a mediation may be filed by a mediator with the Board against an emergency care or [a] facility-based provider [physician] for bad faith mediation. Conduct constituting bad faith mediation means [includes]:

(1) failing to participate in a mediation;

(2) failing to provide information the mediator believes is necessary to facilitate an agreement; or

(3) failing to designate a representative participating in the mediation with full authority to enter into any mediated agreement.

(b) If the enrollee is not satisfied with a mediated agreement, the enrollee may file a complaint with the Board against an emergency care or [a ] facility-based provider [physician] for improper billing reached under Chapter 1467 of the Insurance Code.

(c) Investigations.

(1) All complaints shall be investigated pursuant to Chapter 179 of this title (relating to Investigations) and referred to an informal settlement conference if appropriate.

(2) In accordance with §311.0025 of the Health and Safety Code, the Board shall not open investigations relating to complaints of a single instance of improper billing, but shall open investigations on emergency care or facility-based providers [physicians] who are alleged to have engaged in improper billing in multiple instances.

(d) Penalties.

(1) Bad Faith Mediation. Except for good cause shown, on a report of a mediator and appropriate proof of bad faith mediation, the Board or appropriate advisory board shall impose an administrative penalty.

(2) Improper Billing. If the Board or an advisory board determines that an emergency care or [a] facility-based provider [physician] has engaged in improper billing practices, [the Board shall impose] sanctions consistent with §190.14 of this title (relating to Disciplinary Sanction Guidelines) shall be imposed.

§187.89.Notice of Availability of Mandatory Mediation.

(a) Notice at Time of Presentation.

(1) Except in the case of an emergency and if requested by an enrollee, a facility-based provider [physician] shall, before providing a health care or medical service or supply, provide a complete disclosure to an enrollee consistent with the notice requirements of §1467.051 of the Texas Insurance Code, that:

(A) explains that the facility-based provider [physician] does not have a contract with the enrollee's health benefit plan;

(B) discloses projected amounts for which the enrollee may be responsible; and

(C) discloses the circumstances under which the enrollee would be responsible for those amounts.

(2) Failure to provide notice under this section shall not subject a licensee to disciplinary action.

(b) Notice in Billing Statement.

(1) A bill sent to an enrollee by an emergency care or facility-based provider for an out-of-network health benefit claim must contain an explanation of the mediation process that complies with the requirements set forth under §1467.0511 of the Texas Insurance Code. [physician who bills a patient covered by a preferred provider plan or a health benefit plan under Chapter 1551 of the Insurance Code that does not have a contract with the facility-based physician shall send a billing statement to the patient that contains a conspicuous, plain-language explanation of the mandatory mediation process under Chapter 1467 of the Insurance Code if the amount for which the enrollee is responsible to the physician, after copayments, deductibles, and coinsurance, including the amount unpaid by the administrator or insurer, is greater than $500.]

(2) Failure to provide notice under this section shall not subject a licensee to disciplinary action. [The written notice shall include a reference to TDI's website about the mediation process - http://www.tdi.state.tx.us/consumer/cpmmediation.html.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 28, 2018.

TRD-201802856

Stephen "Brint" Carlton, J.D.

Executive Director

Texas Medical Board

Earliest possible date of adoption: August 12, 2018

For further information, please call: (512) 305-7016