83R11862 AJA-D
By: Van de Putte S.B. No. 1544
A BILL TO BE ENTITLED
AN ACT
relating to payment of and disclosures related to certain
ambulatory surgical center charges.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle F, Title 8, Insurance Code, is amended
by adding Chapter 1458 to read as follows:
CHAPTER 1458. PAYMENT OF OUT-OF-NETWORK AMBULATORY SURGICAL
CENTER CHARGES
Sec. 1458.001. DEFINITIONS. In this chapter:
(1) "Ambulatory surgical center" means a facility
licensed under Chapter 243, Health and Safety Code.
(2) "Database provider" means a database provider
certified by the department under Section 1458.006.
(3) "Designated reimbursement information
organization" means an organization designated by the commissioner
under Section 1458.008.
(4) "Enrollee" means an individual who is eligible to
receive health care services under a managed care plan.
(5) "Managed care plan" means a health benefit plan
under which health care services are provided to enrollees through
contracts with health care providers and that requires or provides
incentives for those enrollees to use health care providers
participating in the plan and procedures covered by the plan. The
term includes a health benefit plan issued by:
(A) a health maintenance organization;
(B) a preferred provider benefit plan issuer;
(C) an approved nonprofit health corporation
that holds a certificate of authority under Chapter 844; or
(D) any other entity that issues a health benefit
plan, including:
(i) an insurance company;
(ii) a fraternal benefit society operating
under Chapter 885;
(iii) a stipulated premium company
operating under Chapter 884; or
(iv) a multiple employer welfare
arrangement that holds a certificate of authority under Chapter
846.
(6) "Maximum usual and customary charge," with respect
to a service provided by an ambulatory surgical center, means the
highest amount that the ambulatory surgical center could charge for
the service that would be considered a usual and customary charge,
as defined by this section.
(7) "Out-of-network ambulatory surgical center," with
respect to a managed care plan, means an ambulatory surgical center
that is not a participating provider of the plan.
(8) "Participating provider," with respect to a
managed care plan, means a health care provider who has contracted
with the managed care plan issuer to provide services to plan
enrollees.
(9) "Purchaser" means an enrollee of a managed care
plan, regardless of whether the enrollee pays any part of the
enrollee's premium, and a sponsor of the managed care plan,
regardless of whether the sponsor pays any part of an enrollee's
premium.
(10) "Usual and customary charge" means a charge for a
service that is not higher than the 99th percentile of the charges
for that service reported to a database provider by ambulatory
surgical centers in the same Medicare region or by the designated
reimbursement information organization with respect to ambulatory
surgical centers in the same Medicare region, computed after
excluding:
(A) charges discounted under a governmental or
nongovernmental health benefit plan; and
(B) the top and bottom 10 percent of reported
charges for that service for the region that are not discounted
under a health benefit plan.
Sec. 1458.002. APPLICABILITY OF CHAPTER. This chapter
applies only to an issuer of a managed care plan that provides
benefits for services provided by out-of-network ambulatory
surgical centers.
Sec. 1458.003. PAYMENT OF CERTAIN OUT-OF-NETWORK
AMBULATORY SURGICAL CENTERS. (a) A managed care plan issuer must
use a charge-based methodology that complies with this chapter for
computing a payment for a service provided by an out-of-network
ambulatory surgical center if the ambulatory surgical center
submits a claim for payment that includes:
(1) a certification of the maximum usual and customary
charge for the service determined by a database provider; or
(2) a certification by a database provider that there
are not sufficient reported charges in the database provider's
database to establish a maximum usual and customary charge for the
service.
(b) If an out-of-network ambulatory surgical center submits
a claim for payment of a charge that includes a certification from a
database provider indicating that the billed charge is a usual and
customary charge, the plan issuer shall pay the billed charge minus
any portion of the charge that is the enrollee's responsibility
under the managed care plan.
(c) If an out-of-network ambulatory surgical center submits
a claim for payment of a charge that includes a certification from a
database provider indicating that the billed charge is higher than
the maximum usual and customary charge, the plan issuer shall pay
the billed charge minus any portion of the charge that is the
enrollee's responsibility under the managed care plan if the billed
charge is justifiable considering special circumstances under
which the services are provided. If the charge is not justifiable
considering special circumstances under which the services are
provided, the plan issuer shall pay the maximum usual and customary
charge minus any portion of the charge that is the enrollee's
responsibility under the managed care plan.
(d) If an out-of-network ambulatory surgical center submits
a claim for payment of a charge that includes a certification
described by Subsection (a)(2) with respect to a billed charge, the
plan issuer shall pay 85 percent of the billed charge or an amount
equal to the 99th percentile of the charges for the service reported
by the designated reimbursement information organization for
ambulatory surgical centers in the same Medicare region, computed
as described by Section 1458.001(10), whichever is less, minus any
portion of the charge that is the enrollee's responsibility under
the managed care plan.
Sec. 1458.004. PROMPT PAYMENT OF USUAL AND CUSTOMARY
CHARGE. If an out-of-network ambulatory surgical center submits to
an issuer of a preferred provider benefit plan or health
maintenance organization plan a claim for payment of a charge that
includes a certification from a database provider indicating that
the charge is a usual and customary charge or a certification
described by Section 1458.003(a)(2) with respect to the charge and
the claim for payment is otherwise made in accordance with
Subchapter C, Chapter 1301, or Subchapter J, Chapter 843:
(1) the claim must be paid in accordance with the
applicable subchapter as if the ambulatory surgical center were a
preferred or participating provider, as applicable; and
(2) if the plan issuer fails to pay the claim in
accordance with this section:
(A) the ambulatory surgical center is entitled to
any remedy under Chapter 843 or 1301 to which a preferred or
participating provider, as applicable, would be entitled for the
plan issuer's failure to pay the claim in accordance with the
applicable subchapter; and
(B) the plan issuer is subject to any penalty or
disciplinary action under this code to which the plan issuer would
be subject for the plan issuer's failure to pay the claim in
accordance with the applicable subchapter.
Sec. 1458.005. REQUIRED CONTRACT TERMS. The language used
in the managed care plan policy, certificate, evidence of coverage,
or contract to describe the benefit provided under the plan for
services provided by an out-of-network ambulatory surgical center:
(1) must:
(A) provide that, if a certification described by
Section 1458.003(a)(2) with respect to the charge is submitted with
the claim, payment to an out-of-network ambulatory surgical center
will be computed based on 85 percent of the billed charge or an
amount equal to the 99th percentile of the charges for the service
reported by the designated reimbursement information organization
for ambulatory surgical centers in the same Medicare region,
computed as described by Section 1458.001(10), whichever is less;
(B) define "usual and customary charge" as that
term is defined by Section 1458.001; and
(C) incorporate into the definition of "usual and
customary charge" the definition of "database provider" assigned by
Section 1458.001; and
(2) may not add or subtract language from a definition
required by this section.
Sec. 1458.006. CERTIFICATION AND QUALIFICATIONS OF
DATABASE PROVIDER AND DATABASE. (a) A database provider that is
used to determine usual and customary charges for the purposes of
this chapter must be certified by the department. The department
may certify a database provider under this chapter only if the
department determines that the database provider and the database
used by the provider for the purposes of this chapter comply with
this section.
(b) A database provider must be an entity that:
(1) has been operating and collecting ambulatory
surgical center out-of-network Current Procedural Terminology code
charge data from this state for at least 10 years;
(2) has compiled out-of-network charges for
ambulatory surgical centers in this state covering a period of at
least seven years;
(3) maintains a database with content that complies
with this section;
(4) maintains an active Internet website accessible to
all ambulatory surgical centers subscribing to the database and to
the public; and
(5) demonstrates an ability to:
(A) maintain a compilation of charge data that is
absent any data required to be excluded under Subsection (e)(1);
and
(B) distinguish charges that are not related to
one another and eliminate irrelevant or erroneous charges from
reported charge information.
(c) The database provider must compute usual and customary
charges for services provided by ambulatory surgical centers in
accordance with this chapter.
(d) The data in the database must contain out-of-network
charges for:
(1) at least 350,000 out-of-network billed charges
from ambulatory surgical centers in this state; and
(2) ambulatory surgical centers in each Medicare
region in this state.
(e) The data in the database may not:
(1) include:
(A) any data other than out-of-network billed
charges of ambulatory surgical centers in this state;
(B) ambulatory surgical center charges that
reflect payments discounted under governmental or nongovernmental
health benefit plans; or
(C) information that is more than seven years
old; or
(2) exclude charges accompanied by modifiers that
indicate procedures with complications.
(f) An entity may not be certified as a database provider
for the purposes of this chapter if the entity owns or controls, or
is owned or controlled by, or is an affiliate of, any entity with a
pecuniary interest in the application of the database.
(g) The Internet website required by this section must allow
an individual to determine the maximum usual and customary charge
for a particular service provided by an ambulatory surgical center.
(h) The department shall ensure that:
(1) the data in the database used to compute usual and
customary charges of out-of-network ambulatory surgical centers is
updated regularly to accurately reflect current ambulatory
surgical center retail charges; and
(2) charge information that is more than seven years
old is removed from the database.
(i) The department may charge a fee for certification under
this section in an amount necessary to implement this section.
Sec. 1458.007. PROVISION OF USUAL AND CUSTOMARY CHARGE BY
DATABASE PROVIDER. A database provider must compute the maximum
usual and customary charge for each service for which a billed
charge is submitted to the provider by an ambulatory surgical
center that subscribes to the database and provide the ambulatory
surgical center with a certification of the maximum usual and
customary charge or a certification described by Section
1458.003(a)(2), as applicable, that is sufficient to enable a
managed care plan issuer to whom the ambulatory surgical center
submits a claim for payment to comply with this chapter.
Sec. 1458.008. DESIGNATED REIMBURSEMENT INFORMATION
ORGANIZATION. (a) The commissioner by rule shall designate an
organization described by this section to report charges for
services provided by ambulatory surgical centers under this
chapter.
(b) The organization designated under this section must be
an independent, not-for-profit organization created to:
(1) establish and maintain a database to help managed
care plan issuers determine reimbursement rates for out-of-network
charges; and
(2) provide patients with a clear, unbiased
explanation of the reimbursement process.
Sec. 1458.009. DISCLOSURES REGARDING PAYMENT OF
OUT-OF-NETWORK AMBULATORY SURGICAL CENTER. (a) A managed care
plan issuer that provides benefits under the plan for services
provided by out-of-network ambulatory surgical centers must
include in the summary plan description and on an Internet website
maintained by the plan issuer and disclose to a prospective
purchaser of the plan:
(1) the definition of "usual and customary charge"
assigned by Section 1458.001 and a description of how payment to an
out-of-network ambulatory surgical center will, if applicable, be
based on 85 percent of the billed charge or an amount equal to the
99th percentile of the charges for the service reported by the
designated reimbursement information organization for ambulatory
surgical centers in the same Medicare region, computed as described
by Section 1458.001(10), whichever is less;
(2) the Internet website addresses of each database
provider certified under this chapter at which a purchaser or
prospective purchaser may access the database or a single website
address at which an updated set of links to the website addresses of
those database providers may be accessed; and
(3) a statement that if the payment due under the
plan's out-of-network benefit provisions is not sufficient to cover
the total billed charge, the ambulatory surgical center agrees to
accept as payment in full the amount paid by the plan in accordance
with those provisions plus any portion of the charge that is the
enrollee's responsibility under the plan.
(b) Disclosures under this section must:
(1) be made in language easily understood by
purchasers and prospective purchasers of managed care plans;
(2) be made in a uniform, clearly organized manner;
(3) be of sufficient detail and comprehensiveness as
to provide for full and fair disclosure; and
(4) be updated as necessary to ensure that the
disclosures are accurate.
Sec. 1458.010. ANNUAL ACTUARIAL CERTIFICATION. (a) A
managed care plan issuer that offers a managed care plan that
provides coverage for services provided by out-of-network
ambulatory surgical centers must annually submit to the department
a written certification stating:
(1) the difference in value for a purchaser between:
(A) the coverage without the out-of-network
ambulatory surgical center benefits; and
(B) the coverage with the out-of-network
ambulatory surgical center benefits; and
(2) that the difference between the amount a purchaser
would be charged for the coverage without the out-of-network
ambulatory surgical center benefits and the amount that a purchaser
would be charged for the coverage with the out-of-network
ambulatory surgical center benefits reflects the difference in
value certified under Subdivision (1).
(b) The certification must be made in easily understood
language, in a uniform, clearly organized manner, and be of
sufficient detail and comprehensiveness as to provide for full and
fair disclosure to an average consumer. The difference between the
value of the coverage without the out-of-network ambulatory
surgical center benefits and the coverage with the out-of-network
ambulatory surgical center benefits must be expressed in terms of a
percentage, although use of a percentage alone is not sufficient to
satisfy the requirements of this section.
(c) The certification must be made by an actuary who is
certified by a nationally recognized actuarial certification
organization recognized by the commissioner and who is not
affiliated with the managed care plan issuer or any of the plan
issuer's affiliates.
(d) A managed care plan issuer must make the certification
required by this section readily available to the public.
Sec. 1458.011. PAYMENT IN FULL. If the payment due under a
managed care plan's out-of-network benefit provisions is not
sufficient to cover the total billed charge, an ambulatory surgical
center agrees to accept as payment in full the amount paid by the
plan in accordance with those provisions plus any portion of the
charge that is the enrollee's responsibility under the plan.
Sec. 1458.012. REMEDIES. (a) A violation of this chapter
by a managed care plan issuer is an unfair and deceptive act or
practice under Chapter 541. If the department finds or it is
otherwise determined that a managed care plan issuer violated this
chapter, the department shall:
(1) take all appropriate corrective action and use any
of the department's other enforcement powers to obtain the plan
issuer's compliance; and
(2) if the violation results in an enrollee's use of an
out-of-network ambulatory surgical center, order the plan issuer to
pay the out-of-network ambulatory surgical center's billed charge
as indicated on the applicable claim form.
(b) The remedies provided by this section are in addition to
remedies available under Section 1458.004 or any other provision of
this code.
Sec. 1458.013. ACTION BY ATTORNEY GENERAL. The attorney
general may, independent of the department, bring an action to
enforce this chapter.
SECTION 2. Subchapter A, Chapter 243, Health and Safety
Code, is amended by adding Section 243.0105 to read as follows:
Sec. 243.0105. FEE SCHEDULE. (a) An ambulatory surgical
center must maintain a current schedule of retail fees for the
services that the center typically provides.
(b) Before providing an elective service to an enrollee of a
managed care plan, as defined by Section 1458.001, Insurance Code,
an ambulatory surgical center that is not a participating provider
under the plan must provide the enrollee with:
(1) a copy of the center's most current fee schedule as
it applies to the elective service the center expects to provide to
the enrollee; and
(2) if applicable, the Internet website address for
the database provider the center uses for the purposes of
certification of usual and customary charges under Chapter 1458,
Insurance Code.
(c) An ambulatory surgical center must disclose to any
patient or prospective patient a copy of the center's 100 most
commonly provided services by procedure code. The center may make
the disclosure required by this subsection available by hard copy,
electronically, or through an Internet website.
SECTION 3. Chapter 1458, Insurance Code, as added by this
Act, applies only to charges for services provided to an enrollee
under a managed care plan policy, certificate, or contract
delivered, issued for delivery, or renewed on or after January 1,
2014. Charges for services provided to an enrollee under a policy,
certificate, or contract delivered, issued for delivery, or renewed
before January 1, 2014, are governed by the law in effect
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
SECTION 4. This Act takes effect September 1, 2013.