Texas 2013 - 83rd Regular

Texas House Bill HB3269 Compare Versions

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1	1	83R11862 AJA-D
2	2	By: Smithee H.B. No. 3269
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to payment of and disclosures related to certain
8	8	ambulatory surgical center charges.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subtitle F, Title 8, Insurance Code, is amended
11	11	by adding Chapter 1458 to read as follows:
12	12	CHAPTER 1458. PAYMENT OF OUT-OF-NETWORK AMBULATORY SURGICAL
13	13	CENTER CHARGES
14	14	Sec. 1458.001. DEFINITIONS. In this chapter:
15	15	(1) "Ambulatory surgical center" means a facility
16	16	licensed under Chapter 243, Health and Safety Code.
17	17	(2) "Database provider" means a database provider
18	18	certified by the department under Section 1458.006.
19	19	(3) "Designated reimbursement information
20	20	organization" means an organization designated by the commissioner
21	21	under Section 1458.008.
22	22	(4) "Enrollee" means an individual who is eligible to
23	23	receive health care services under a managed care plan.
24	24	(5) "Managed care plan" means a health benefit plan
25	25	under which health care services are provided to enrollees through
26	26	contracts with health care providers and that requires or provides
27	27	incentives for those enrollees to use health care providers
28	28	participating in the plan and procedures covered by the plan. The
29	29	term includes a health benefit plan issued by:
30	30	(A) a health maintenance organization;
31	31	(B) a preferred provider benefit plan issuer;
32	32	(C) an approved nonprofit health corporation
33	33	that holds a certificate of authority under Chapter 844; or
34	34	(D) any other entity that issues a health benefit
35	35	plan, including:
36	36	(i) an insurance company;
37	37	(ii) a fraternal benefit society operating
38	38	under Chapter 885;
39	39	(iii) a stipulated premium company
40	40	operating under Chapter 884; or
41	41	(iv) a multiple employer welfare
42	42	arrangement that holds a certificate of authority under Chapter
43	43	846.
44	44	(6) "Maximum usual and customary charge," with respect
45	45	to a service provided by an ambulatory surgical center, means the
46	46	highest amount that the ambulatory surgical center could charge for
47	47	the service that would be considered a usual and customary charge,
48	48	as defined by this section.
49	49	(7) "Out-of-network ambulatory surgical center," with
50	50	respect to a managed care plan, means an ambulatory surgical center
51	51	that is not a participating provider of the plan.
52	52	(8) "Participating provider," with respect to a
53	53	managed care plan, means a health care provider who has contracted
54	54	with the managed care plan issuer to provide services to plan
55	55	enrollees.
56	56	(9) "Purchaser" means an enrollee of a managed care
57	57	plan, regardless of whether the enrollee pays any part of the
58	58	enrollee's premium, and a sponsor of the managed care plan,
59	59	regardless of whether the sponsor pays any part of an enrollee's
60	60	premium.
61	61	(10) "Usual and customary charge" means a charge for a
62	62	service that is not higher than the 99th percentile of the charges
63	63	for that service reported to a database provider by ambulatory
64	64	surgical centers in the same Medicare region or by the designated
65	65	reimbursement information organization with respect to ambulatory
66	66	surgical centers in the same Medicare region, computed after
67	67	excluding:
68	68	(A) charges discounted under a governmental or
69	69	nongovernmental health benefit plan; and
70	70	(B) the top and bottom 10 percent of reported
71	71	charges for that service for the region that are not discounted
72	72	under a health benefit plan.
73	73	Sec. 1458.002. APPLICABILITY OF CHAPTER. This chapter
74	74	applies only to an issuer of a managed care plan that provides
75	75	benefits for services provided by out-of-network ambulatory
76	76	surgical centers.
77	77	Sec. 1458.003. PAYMENT OF CERTAIN OUT-OF-NETWORK
78	78	AMBULATORY SURGICAL CENTERS. (a) A managed care plan issuer must
79	79	use a charge-based methodology that complies with this chapter for
80	80	computing a payment for a service provided by an out-of-network
81	81	ambulatory surgical center if the ambulatory surgical center
82	82	submits a claim for payment that includes:
83	83	(1) a certification of the maximum usual and customary
84	84	charge for the service determined by a database provider; or
85	85	(2) a certification by a database provider that there
86	86	are not sufficient reported charges in the database provider's
87	87	database to establish a maximum usual and customary charge for the
88	88	service.
89	89	(b) If an out-of-network ambulatory surgical center submits
90	90	a claim for payment of a charge that includes a certification from a
91	91	database provider indicating that the billed charge is a usual and
92	92	customary charge, the plan issuer shall pay the billed charge minus
93	93	any portion of the charge that is the enrollee's responsibility
94	94	under the managed care plan.
95	95	(c) If an out-of-network ambulatory surgical center submits
96	96	a claim for payment of a charge that includes a certification from a
97	97	database provider indicating that the billed charge is higher than
98	98	the maximum usual and customary charge, the plan issuer shall pay
99	99	the billed charge minus any portion of the charge that is the
100	100	enrollee's responsibility under the managed care plan if the billed
101	101	charge is justifiable considering special circumstances under
102	102	which the services are provided. If the charge is not justifiable
103	103	considering special circumstances under which the services are
104	104	provided, the plan issuer shall pay the maximum usual and customary
105	105	charge minus any portion of the charge that is the enrollee's
106	106	responsibility under the managed care plan.
107	107	(d) If an out-of-network ambulatory surgical center submits
108	108	a claim for payment of a charge that includes a certification
109	109	described by Subsection (a)(2) with respect to a billed charge, the
110	110	plan issuer shall pay 85 percent of the billed charge or an amount
111	111	equal to the 99th percentile of the charges for the service reported
112	112	by the designated reimbursement information organization for
113	113	ambulatory surgical centers in the same Medicare region, computed
114	114	as described by Section 1458.001(10), whichever is less, minus any
115	115	portion of the charge that is the enrollee's responsibility under
116	116	the managed care plan.
117	117	Sec. 1458.004. PROMPT PAYMENT OF USUAL AND CUSTOMARY
118	118	CHARGE. If an out-of-network ambulatory surgical center submits to
119	119	an issuer of a preferred provider benefit plan or health
120	120	maintenance organization plan a claim for payment of a charge that
121	121	includes a certification from a database provider indicating that
122	122	the charge is a usual and customary charge or a certification
123	123	described by Section 1458.003(a)(2) with respect to the charge and
124	124	the claim for payment is otherwise made in accordance with
125	125	Subchapter C, Chapter 1301, or Subchapter J, Chapter 843:
126	126	(1) the claim must be paid in accordance with the
127	127	applicable subchapter as if the ambulatory surgical center were a
128	128	preferred or participating provider, as applicable; and
129	129	(2) if the plan issuer fails to pay the claim in
130	130	accordance with this section:
131	131	(A) the ambulatory surgical center is entitled to
132	132	any remedy under Chapter 843 or 1301 to which a preferred or
133	133	participating provider, as applicable, would be entitled for the
134	134	plan issuer's failure to pay the claim in accordance with the
135	135	applicable subchapter; and
136	136	(B) the plan issuer is subject to any penalty or
137	137	disciplinary action under this code to which the plan issuer would
138	138	be subject for the plan issuer's failure to pay the claim in
139	139	accordance with the applicable subchapter.
140	140	Sec. 1458.005. REQUIRED CONTRACT TERMS. The language used
141	141	in the managed care plan policy, certificate, evidence of coverage,
142	142	or contract to describe the benefit provided under the plan for
143	143	services provided by an out-of-network ambulatory surgical center:
144	144	(1) must:
145	145	(A) provide that, if a certification described by
146	146	Section 1458.003(a)(2) with respect to the charge is submitted with
147	147	the claim, payment to an out-of-network ambulatory surgical center
148	148	will be computed based on 85 percent of the billed charge or an
149	149	amount equal to the 99th percentile of the charges for the service
150	150	reported by the designated reimbursement information organization
151	151	for ambulatory surgical centers in the same Medicare region,
152	152	computed as described by Section 1458.001(10), whichever is less;
153	153	(B) define "usual and customary charge" as that
154	154	term is defined by Section 1458.001; and
155	155	(C) incorporate into the definition of "usual and
156	156	customary charge" the definition of "database provider" assigned by
157	157	Section 1458.001; and
158	158	(2) may not add or subtract language from a definition
159	159	required by this section.
160	160	Sec. 1458.006. CERTIFICATION AND QUALIFICATIONS OF
161	161	DATABASE PROVIDER AND DATABASE. (a) A database provider that is
162	162	used to determine usual and customary charges for the purposes of
163	163	this chapter must be certified by the department. The department
164	164	may certify a database provider under this chapter only if the
165	165	department determines that the database provider and the database
166	166	used by the provider for the purposes of this chapter comply with
167	167	this section.
168	168	(b) A database provider must be an entity that:
169	169	(1) has been operating and collecting ambulatory
170	170	surgical center out-of-network Current Procedural Terminology code
171	171	charge data from this state for at least 10 years;
172	172	(2) has compiled out-of-network charges for
173	173	ambulatory surgical centers in this state covering a period of at
174	174	least seven years;
175	175	(3) maintains a database with content that complies
176	176	with this section;
177	177	(4) maintains an active Internet website accessible to
178	178	all ambulatory surgical centers subscribing to the database and to
179	179	the public; and
180	180	(5) demonstrates an ability to:
181	181	(A) maintain a compilation of charge data that is
182	182	absent any data required to be excluded under Subsection (e)(1);
183	183	and
184	184	(B) distinguish charges that are not related to
185	185	one another and eliminate irrelevant or erroneous charges from
186	186	reported charge information.
187	187	(c) The database provider must compute usual and customary
188	188	charges for services provided by ambulatory surgical centers in
189	189	accordance with this chapter.
190	190	(d) The data in the database must contain out-of-network
191	191	charges for:
192	192	(1) at least 350,000 out-of-network billed charges
193	193	from ambulatory surgical centers in this state; and
194	194	(2) ambulatory surgical centers in each Medicare
195	195	region in this state.
196	196	(e) The data in the database may not:
197	197	(1) include:
198	198	(A) any data other than out-of-network billed
199	199	charges of ambulatory surgical centers in this state;
200	200	(B) ambulatory surgical center charges that
201	201	reflect payments discounted under governmental or nongovernmental
202	202	health benefit plans; or
203	203	(C) information that is more than seven years
204	204	old; or
205	205	(2) exclude charges accompanied by modifiers that
206	206	indicate procedures with complications.
207	207	(f) An entity may not be certified as a database provider
208	208	for the purposes of this chapter if the entity owns or controls, or
209	209	is owned or controlled by, or is an affiliate of, any entity with a
210	210	pecuniary interest in the application of the database.
211	211	(g) The Internet website required by this section must allow
212	212	an individual to determine the maximum usual and customary charge
213	213	for a particular service provided by an ambulatory surgical center.
214	214	(h) The department shall ensure that:
215	215	(1) the data in the database used to compute usual and
216	216	customary charges of out-of-network ambulatory surgical centers is
217	217	updated regularly to accurately reflect current ambulatory
218	218	surgical center retail charges; and
219	219	(2) charge information that is more than seven years
220	220	old is removed from the database.
221	221	(i) The department may charge a fee for certification under
222	222	this section in an amount necessary to implement this section.
223	223	Sec. 1458.007. PROVISION OF USUAL AND CUSTOMARY CHARGE BY
224	224	DATABASE PROVIDER. A database provider must compute the maximum
225	225	usual and customary charge for each service for which a billed
226	226	charge is submitted to the provider by an ambulatory surgical
227	227	center that subscribes to the database and provide the ambulatory
228	228	surgical center with a certification of the maximum usual and
229	229	customary charge or a certification described by Section
230	230	1458.003(a)(2), as applicable, that is sufficient to enable a
231	231	managed care plan issuer to whom the ambulatory surgical center
232	232	submits a claim for payment to comply with this chapter.
233	233	Sec. 1458.008. DESIGNATED REIMBURSEMENT INFORMATION
234	234	ORGANIZATION. (a) The commissioner by rule shall designate an
235	235	organization described by this section to report charges for
236	236	services provided by ambulatory surgical centers under this
237	237	chapter.
238	238	(b) The organization designated under this section must be
239	239	an independent, not-for-profit organization created to:
240	240	(1) establish and maintain a database to help managed
241	241	care plan issuers determine reimbursement rates for out-of-network
242	242	charges; and
243	243	(2) provide patients with a clear, unbiased
244	244	explanation of the reimbursement process.
245	245	Sec. 1458.009. DISCLOSURES REGARDING PAYMENT OF
246	246	OUT-OF-NETWORK AMBULATORY SURGICAL CENTER. (a) A managed care
247	247	plan issuer that provides benefits under the plan for services
248	248	provided by out-of-network ambulatory surgical centers must
249	249	include in the summary plan description and on an Internet website
250	250	maintained by the plan issuer and disclose to a prospective
251	251	purchaser of the plan:
252	252	(1) the definition of "usual and customary charge"
253	253	assigned by Section 1458.001 and a description of how payment to an
254	254	out-of-network ambulatory surgical center will, if applicable, be
255	255	based on 85 percent of the billed charge or an amount equal to the
256	256	99th percentile of the charges for the service reported by the
257	257	designated reimbursement information organization for ambulatory
258	258	surgical centers in the same Medicare region, computed as described
259	259	by Section 1458.001(10), whichever is less;
260	260	(2) the Internet website addresses of each database
261	261	provider certified under this chapter at which a purchaser or
262	262	prospective purchaser may access the database or a single website
263	263	address at which an updated set of links to the website addresses of
264	264	those database providers may be accessed; and
265	265	(3) a statement that if the payment due under the
266	266	plan's out-of-network benefit provisions is not sufficient to cover
267	267	the total billed charge, the ambulatory surgical center agrees to
268	268	accept as payment in full the amount paid by the plan in accordance
269	269	with those provisions plus any portion of the charge that is the
270	270	enrollee's responsibility under the plan.
271	271	(b) Disclosures under this section must:
272	272	(1) be made in language easily understood by
273	273	purchasers and prospective purchasers of managed care plans;
274	274	(2) be made in a uniform, clearly organized manner;
275	275	(3) be of sufficient detail and comprehensiveness as
276	276	to provide for full and fair disclosure; and
277	277	(4) be updated as necessary to ensure that the
278	278	disclosures are accurate.
279	279	Sec. 1458.010. ANNUAL ACTUARIAL CERTIFICATION. (a) A
280	280	managed care plan issuer that offers a managed care plan that
281	281	provides coverage for services provided by out-of-network
282	282	ambulatory surgical centers must annually submit to the department
283	283	a written certification stating:
284	284	(1) the difference in value for a purchaser between:
285	285	(A) the coverage without the out-of-network
286	286	ambulatory surgical center benefits; and
287	287	(B) the coverage with the out-of-network
288	288	ambulatory surgical center benefits; and
289	289	(2) that the difference between the amount a purchaser
290	290	would be charged for the coverage without the out-of-network
291	291	ambulatory surgical center benefits and the amount that a purchaser
292	292	would be charged for the coverage with the out-of-network
293	293	ambulatory surgical center benefits reflects the difference in
294	294	value certified under Subdivision (1).
295	295	(b) The certification must be made in easily understood
296	296	language, in a uniform, clearly organized manner, and be of
297	297	sufficient detail and comprehensiveness as to provide for full and
298	298	fair disclosure to an average consumer. The difference between the
299	299	value of the coverage without the out-of-network ambulatory
300	300	surgical center benefits and the coverage with the out-of-network
301	301	ambulatory surgical center benefits must be expressed in terms of a
302	302	percentage, although use of a percentage alone is not sufficient to
303	303	satisfy the requirements of this section.
304	304	(c) The certification must be made by an actuary who is
305	305	certified by a nationally recognized actuarial certification
306	306	organization recognized by the commissioner and who is not
307	307	affiliated with the managed care plan issuer or any of the plan
308	308	issuer's affiliates.
309	309	(d) A managed care plan issuer must make the certification
310	310	required by this section readily available to the public.
311	311	Sec. 1458.011. PAYMENT IN FULL. If the payment due under a
312	312	managed care plan's out-of-network benefit provisions is not
313	313	sufficient to cover the total billed charge, an ambulatory surgical
314	314	center agrees to accept as payment in full the amount paid by the
315	315	plan in accordance with those provisions plus any portion of the
316	316	charge that is the enrollee's responsibility under the plan.
317	317	Sec. 1458.012. REMEDIES. (a) A violation of this chapter
318	318	by a managed care plan issuer is an unfair and deceptive act or
319	319	practice under Chapter 541. If the department finds or it is
320	320	otherwise determined that a managed care plan issuer violated this
321	321	chapter, the department shall:
322	322	(1) take all appropriate corrective action and use any
323	323	of the department's other enforcement powers to obtain the plan
324	324	issuer's compliance; and
325	325	(2) if the violation results in an enrollee's use of an
326	326	out-of-network ambulatory surgical center, order the plan issuer to
327	327	pay the out-of-network ambulatory surgical center's billed charge
328	328	as indicated on the applicable claim form.
329	329	(b) The remedies provided by this section are in addition to
330	330	remedies available under Section 1458.004 or any other provision of
331	331	this code.
332	332	Sec. 1458.013. ACTION BY ATTORNEY GENERAL. The attorney
333	333	general may, independent of the department, bring an action to
334	334	enforce this chapter.
335	335	SECTION 2. Subchapter A, Chapter 243, Health and Safety
336	336	Code, is amended by adding Section 243.0105 to read as follows:
337	337	Sec. 243.0105. FEE SCHEDULE. (a) An ambulatory surgical
338	338	center must maintain a current schedule of retail fees for the
339	339	services that the center typically provides.
340	340	(b) Before providing an elective service to an enrollee of a
341	341	managed care plan, as defined by Section 1458.001, Insurance Code,
342	342	an ambulatory surgical center that is not a participating provider
343	343	under the plan must provide the enrollee with:
344	344	(1) a copy of the center's most current fee schedule as
345	345	it applies to the elective service the center expects to provide to
346	346	the enrollee; and
347	347	(2) if applicable, the Internet website address for
348	348	the database provider the center uses for the purposes of
349	349	certification of usual and customary charges under Chapter 1458,
350	350	Insurance Code.
351	351	(c) An ambulatory surgical center must disclose to any
352	352	patient or prospective patient a copy of the center's 100 most
353	353	commonly provided services by procedure code. The center may make
354	354	the disclosure required by this subsection available by hard copy,
355	355	electronically, or through an Internet website.
356	356	SECTION 3. Chapter 1458, Insurance Code, as added by this
357	357	Act, applies only to charges for services provided to an enrollee
358	358	under a managed care plan policy, certificate, or contract
359	359	delivered, issued for delivery, or renewed on or after January 1,
360	360	2014. Charges for services provided to an enrollee under a policy,
361	361	certificate, or contract delivered, issued for delivery, or renewed
362	362	before January 1, 2014, are governed by the law in effect
363	363	immediately before the effective date of this Act, and that law is
364	364	continued in effect for that purpose.
365	365	SECTION 4. This Act takes effect September 1, 2013.