88R3018 MEW-F
By: Frank H.B. No. 711
A BILL TO BE ENTITLED
AN ACT
relating to certain contract provisions and conduct affecting
health care provider networks.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1458.001, Insurance Code, is amended by
adding Subdivisions (1-a), (1-b), (1-c), (4-a), (4-b), and (5-a) to
read as follows:
(1-a) "All-or-nothing clause" means a provision in a
provider network contract that requires a general contracting
entity to:
(A) include all members of a provider in a
network plan; or
(B) enter into or maintain an additional contract
with an affiliate of a provider as a condition of entering into a
contract.
(1-b) "Anti-steering clause" means a provision in a
provider network contract that restricts the ability of a general
contracting entity to encourage an enrollee to obtain a health care
service from a competitor of the provider, including offering
incentives to encourage enrollees to use specific providers.
(1-c) "Anti-tiering clause" means a provision in a
provider network contract that:
(A) restricts the ability of a general
contracting entity to introduce or modify a tiered network plan or
assign providers into tiers; or
(B) requires a general contracting entity to
place all members of a provider in the same tier of a tiered network
plan.
(4-a) "Gag clause" means a provision in a provider
network contract that restricts the ability of a general
contracting entity or provider to disclose:
(A) price or quality information, including the
allowed amount, negotiated rates or discounts, fees for services,
or other claim-related financial obligations included in the
contract, to a governmental entity as authorized by law or its
contractors or agents, an enrollee, a treating provider of an
enrollee, a plan sponsor, or potential eligible enrollees and plan
sponsors; or
(B) out-of-pocket costs to an enrollee.
(4-b) "General contracting entity" means a person who
enters into a direct contract with a provider for the delivery of
health care services to covered individuals regardless of whether
the person, in the ordinary course of business, establishes a
provider network for access by another party.
(5-a) "Most favored nation clause" means a provision
in a provider network contract that:
(A) prohibits or grants an option to prohibit:
(i) a provider from contracting with
another general contracting entity to provide health care services
at a lower rate; or
(ii) a general contracting entity from
contracting with another provider to provide health care services
at a higher rate;
(B) requires or grants an option to require:
(i) a provider to accept a lower rate for
health care services if the provider agrees with another general
contracting entity to accept a lower rate for the services; or
(ii) a general contracting entity to pay a
higher rate for health care services if the entity agrees with
another provider to pay a higher rate for the services;
(C) requires or grants an option to require
termination or renegotiation of an existing provider network
contract if:
(i) a provider agrees with another general
contracting entity to accept a lower rate for providing health care
services; or
(ii) a general contracting entity agrees
with a provider to pay a higher rate for health care services; or
(D) requires:
(i) a provider to disclose the provider's
contractual reimbursement rates with other general contracting
entities; or
(ii) a general contracting entity to
disclose the general contracting entity's contractual
reimbursement rates with other providers.
SECTION 2. Section 1458.101, Insurance Code, is amended by
adding Subsections (g), (h), and (i) to read as follows:
(g) A provider may not:
(1) offer to a general contracting entity a provider
network contract that includes an all-or-nothing, anti-steering,
anti-tiering, gag, or most favored nation clause;
(2) enter into a provider network contract that
includes an all-or-nothing, anti-steering, anti-tiering, gag, or
most favored nation clause; or
(3) amend or renew an existing provider network
contract previously entered into with a general contracting entity
so that the contract as amended or renewed adds or retains an
all-or-nothing, anti-steering, anti-tiering, gag, or most favored
nation clause.
(h) Any provision in a provider network contract that is an
all-or-nothing, anti-steering, anti-tiering, gag, or most favored
nation clause is void and unenforceable. The remaining provisions
in the provider network contract remain in effect and are
enforceable.
(i) A general contracting entity that encourages an
enrollee to obtain a health care service from a particular
provider, including offering incentives to encourage enrollees to
use specific providers, or that introduces or modifies a tiered
network plan or assigns providers into tiers has a fiduciary duty to
the enrollee to engage in that conduct only for the primary benefit
of the enrollee.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2023.