88R8785 CJD-F
By: Hughes S.B. No. 860
A BILL TO BE ENTITLED
AN ACT
relating to the relationship between managed care plans and
optometrists, therapeutic optometrists, and ophthalmologists.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1451.151(1), Insurance Code, is amended
to read as follows:
(1) "Managed care plan" means a plan under which a
health maintenance organization, preferred provider benefit plan
issuer, vision benefit plan issuer, vision benefit plan
administrator, or other organization provides or arranges for
health care benefits or vision benefits to plan participants and
requires or encourages plan participants to use health care
practitioners the plan designates.
SECTION 2. Section 1451.153, Insurance Code, is amended to
read as follows:
Sec. 1451.153. USE OF OPTOMETRIST, THERAPEUTIC
OPTOMETRIST, OR OPHTHALMOLOGIST. (a) A managed care plan may not:
(1) discriminate against a health care practitioner
because the practitioner is an optometrist, therapeutic
optometrist, or ophthalmologist;
(2) restrict or discourage a plan participant from
obtaining covered vision or medical eye care services or procedures
from a participating optometrist, therapeutic optometrist, or
ophthalmologist solely because the practitioner is an optometrist,
therapeutic optometrist, or ophthalmologist;
(3) exclude an optometrist, therapeutic optometrist,
or ophthalmologist as a participating practitioner in the plan
because the optometrist, therapeutic optometrist, or
ophthalmologist does not have medical staff privileges at a
hospital or at a particular hospital;
(4) deny participation of an optometrist, therapeutic
optometrist, or ophthalmologist as a participating practitioner in
the plan if the optometrist, therapeutic optometrist, or
ophthalmologist meets the plan's credentialing requirements and
agrees to the plan's contractual terms;
(5) create, offer, or use a contractual fee schedule
that reimburses an optometrist, therapeutic optometrist, or
ophthalmologist differently from another optometrist, therapeutic
optometrist, or ophthalmologist based on professional degree held;
(6) identify a participating optometrist, therapeutic
optometrist, or ophthalmologist differently from other
participating health care practitioners based on any
characteristic other than professional degree held;
(7) incentivize, recommend, encourage, persuade, or
attempt to persuade an enrollee to obtain covered or uncovered
products or services:
(A) at any particular participating optometrist,
therapeutic optometrist, or ophthalmologist instead of another
participating optometrist, therapeutic optometrist, or
ophthalmologist;
(B) at a retail establishment owned by, partially
owned by, contracted with, or otherwise affiliated with the managed
care plan instead of a different participating optometrist,
therapeutic optometrist, or ophthalmologist; or
(C) at any Internet or virtual provider or
retailer owned by, partially owned by, contracted with, or
otherwise affiliated with the managed care plan instead of a
different participating optometrist, therapeutic optometrist, or
ophthalmologist;
(8) exclude an optometrist, therapeutic optometrist,
or ophthalmologist as a participating practitioner in the plan
because the services or procedures provided by the optometrist,
therapeutic optometrist, or ophthalmologist may be provided by
another type of health care practitioner; or
(9) [(5)] as a condition for a therapeutic optometrist
or ophthalmologist to be included in one or more of the plan's
medical panels, require the therapeutic optometrist or
ophthalmologist to be included in, or to accept the terms of payment
under or for, a particular vision panel in which the therapeutic
optometrist or ophthalmologist does not otherwise wish to be
included.
(b) A managed care plan shall:
(1) include optometrists, therapeutic optometrists,
and ophthalmologists as participating health care practitioners in
the plan; [and]
(2) include the name of a participating optometrist,
therapeutic optometrist, or ophthalmologist in any list of
participating health care practitioners and give equal prominence
to each name;
(3) provide directly to an optometrist, therapeutic
optometrist, ophthalmologist, or plan enrollee immediate access by
electronic means to an enrollee's complete plan coverage
information, including in-network and out-of-network coverage
details;
(4) publish complete plan information, including
in-network and out-of-network coverage details, with any marketing
materials that describe the plan benefits, including any summary
plan description;
(5) allow an optometrist, therapeutic optometrist, or
ophthalmologist to utilize any third-party claim-filing service,
billing service, or electronic data interchange clearinghouse
company that uses the standardized claim submission protocol of the
National Uniform Claim Committee to facilitate the authorization,
submission, and reimbursement of claims; and
(6) allow an optometrist, therapeutic optometrist, or
ophthalmologist to receive reimbursement through an automated
clearinghouse electronic funds transfer.
(c) For the purposes of Subsection (a)(9) [(a)(5)],
"medical panel" and "vision panel" have the meanings assigned by
Section 1451.154(a).
SECTION 3. Section 1451.154(c), Insurance Code, is amended
to read as follows:
(c) A therapeutic optometrist who is included in a managed
care plan's medical panels under Subsection (b) must:
(1) abide by the terms and conditions of the managed
care plan;
(2) satisfy the managed care plan's credentialing
standards for therapeutic optometrists; and
(3) provide proof that the Texas Optometry Board
considers the therapeutic optometrist's license to practice
therapeutic optometry to be in good standing[; and
[(4) comply with the requirements of the Controlled
Substances Registration Program operated by the Department of
Public Safety].
SECTION 4. Section 1451.155, Insurance Code, is amended to
read as follows:
Sec. 1451.155. CONTRACTS WITH OPTOMETRISTS OR THERAPEUTIC
OPTOMETRISTS. (a) In this section:
(1) "Chargeback" means a dollar amount, fee,
surcharge, or item of value that reduces, modifies, or offsets all
or part of the patient responsibility, provider reimbursement, or
fee schedule for a covered product or service.
(2) "Covered product or service" means a medical or
vision care product or service for which reimbursement is available
under an enrollee's managed care plan contract or for which
reimbursement is available subject to a contractual limitation,
including:
(A) a deductible;
(B) a copayment;
(C) coinsurance;
(D) a waiting period;
(E) an annual or lifetime maximum limit;
(F) a frequency limitation; or
(G) an alternative benefit payment.
(3) [(2)] "Medical or vision [Vision] care product or
service" means a product or service provided within the scope of the
practice of optometry or therapeutic optometry under Chapter 351,
Occupations Code.
(a-1) For the purposes of this section, a product or service
reimbursed to an optometrist or therapeutic optometrist at a
nominal or de minimis rate is not a covered product or service.
(a-2) For the purposes of this section, a product or service
reimbursed to an optometrist or therapeutic optometrist solely by
the enrollee is not a covered product or service.
(b) A contract between a managed care plan [an insurer] and
an optometrist or therapeutic optometrist may not limit the fee the
optometrist or therapeutic optometrist may charge for a product or
service that is not a covered product or service.
(c) A contract between a managed care plan [an insurer] and
an optometrist or therapeutic optometrist may not require a
discount on a product or service that is not a covered product or
service.
(d) A contract between a managed care plan and an
optometrist or therapeutic optometrist may not contain a provision
authorizing a chargeback to the patient, optometrist, or
therapeutic optometrist if the chargeback is for a covered product
or service that the managed care plan does not produce, deliver, or
provide.
(e) A contract between a managed care plan and an
optometrist or therapeutic optometrist may not contain a provision
authorizing a reimbursement fee schedule for a covered product or
service that is different from the fee schedule applicable to
another optometrist or therapeutic optometrist because of the
optometrist's or therapeutic optometrist's choice of:
(1) optical laboratory;
(2) source or supplier of:
(A) contact lenses;
(B) ophthalmic lenses;
(C) ophthalmic glasses frames; or
(D) covered or uncovered products or services;
(3) equipment used for patient care;
(4) retail optical affiliation;
(5) vision support organization;
(6) group purchasing organization;
(7) doctor alliance;
(8) professional trade association membership;
(9) affiliation with an arrangement defined as a
franchise by 16 C.F.R. Part 436;
(10) electronic health record software, electronic
medical record software, or practice management software; or
(11) third-party claim-filing service, billing
service, or electronic data interchange clearinghouse company.
(f) A managed care plan may not change a contract between a
managed care plan and an optometrist or therapeutic optometrist,
including terms, reimbursements, or fee schedules, unless:
(1) the managed care plan provides written notice of
the change to the optometrist or therapeutic optometrist at least
90 days before the date the proposed change takes effect; and
(2) the optometrist or therapeutic optometrist
affirmatively agrees in writing to the change.
(g) A contract between a managed care plan and an
optometrist or therapeutic optometrist may not contain a provision
requiring a patient, optometrist, or therapeutic optometrist to
obtain precertification or prior authorization for a covered
product or service provided by the optometrist or therapeutic
optometrist.
(h) A contract between a managed care plan and an
optometrist or therapeutic optometrist may not contain a provision
requiring the optometrist or therapeutic optometrist to provide a
covered product or service at a loss.
(i) A contract between a managed care plan and an
optometrist or therapeutic optometrist may not contain a provision
requiring the optometrist or therapeutic optometrist to accept a
reimbursement payment in the form of a virtual credit card or any
other payment method where a processing fee, administrative fee,
percentage amount, or dollar amount is assessed to receive the
reimbursement payment, except in the case of a nominal fee assessed
by the optometrist's or therapeutic optometrist's bank to receive
an electronic funds transfer.
SECTION 5. The heading to Section 1451.156, Insurance Code,
is amended to read as follows:
Sec. 1451.156. CERTAIN CONDUCT PROHIBITED [CONDUCT].
SECTION 6. Section 1451.156(a), Insurance Code, is amended
to read as follows:
(a) A managed care plan, as described by Section
1451.152(a), may not directly or indirectly:
(1) control or attempt to control the professional
judgment, manner of practice, or practice of an optometrist or
therapeutic optometrist;
(2) employ an optometrist or therapeutic optometrist
to provide a vision care product or service as defined by Section
1451.155;
(3) pay an optometrist or therapeutic optometrist for
a service not provided;
(4) reimburse an optometrist or therapeutic
optometrist a different amount for a covered product or service as
defined by Section 1451.155 because of the optometrist's or
therapeutic optometrist's choice of:
(A) optical laboratory;
(B) source or supplier of:
(i) contact lenses;
(ii) ophthalmic lenses;
(iii) ophthalmic glasses frames; or
(iv) covered or uncovered products or
services;
(C) equipment used for patient care;
(D) retail optical affiliation;
(E) vision support organization;
(F) group purchasing organization;
(G) doctor alliance;
(H) professional trade association membership;
(I) affiliation with an arrangement defined as a
franchise by 16 C.F.R. Part 436;
(J) electronic health record software,
electronic medical record software, or practice management
software; or
(K) third-party claim-filing service, billing
service, or electronic data interchange clearinghouse company;
(5) restrict, [or] limit, or influence an
optometrist's or therapeutic optometrist's choice of sources or
suppliers of services or materials, including optical laboratories
used by the optometrist or therapeutic optometrist to provide
services or materials to a patient;
(6) restrict, limit, or influence an optometrist's or
therapeutic optometrist's choice of electronic health record
software, electronic medical record software, or practice
management software;
(7) restrict, limit, or influence an optometrist's or
therapeutic optometrist's choice of third-party claim-filing
service, billing service, or electronic data interchange
clearinghouse company;
(8) restrict or limit an optometrist's or therapeutic
optometrist's access to a patient's complete plan coverage
information, including in-network and out-of-network coverage
details;
(9) apply a chargeback, as defined by Section
1451.155, to a patient, optometrist, or therapeutic optometrist if
the chargeback is for a covered product or service that the managed
care plan does not produce, deliver, or provide;
(10) require an optometrist or therapeutic
optometrist to provide a covered product at a loss; [or]
(11) [(5)] require an optometrist or therapeutic
optometrist to disclose a patient's confidential or protected
health information unless the disclosure is authorized by the
patient or permitted without authorization under the Health
Insurance Portability and Accountability Act of 1996 (42 U.S.C.
Section 1320d et seq.) or under Section 602.053;
(12) require an optometrist or therapeutic
optometrist to disclose or report a medical history or diagnosis as
a condition to file a claim, adjudicate a claim, or receive
reimbursement for a routine or wellness vision eye exam;
(13) require an optometrist or therapeutic
optometrist to disclose or report a patient's glasses prescription,
contact lens prescription, ophthalmic device measurements, facial
photograph, or unique anatomical measurements as a condition to
file a claim, adjudicate a claim, or receive reimbursement for a
claim;
(14) require an optometrist or therapeutic
optometrist to disclose any patient information, other than
information identified on the version of the Health Insurance Claim
Form approved by the National Uniform Claim Committee as of March 1,
2023, as a condition to file a claim, adjudicate a claim, or receive
reimbursement for a claim;
(15) require a patient, optometrist, or therapeutic
optometrist to obtain precertification or prior authorization for a
covered product or service provided by the optometrist or
therapeutic optometrist;
(16) require an optometrist or therapeutic
optometrist to provide a covered product or service at a loss; or
(17) require an optometrist or therapeutic
optometrist to accept a reimbursement payment in the form of a
virtual credit card or any other payment method where a processing
fee, administrative fee, percentage amount, or dollar amount is
assessed to receive the reimbursement payment, except in the case
of a nominal fee assessed by the optometrist's or therapeutic
optometrist's bank to receive an electronic funds transfer.
SECTION 7. Subchapter D, Chapter 1451, Insurance Code, is
amended by adding Sections 1451.157 and 1451.158 to read as
follows:
Sec. 1451.157. EXTRAPOLATION PROHIBITED. (a) In this
section, "extrapolation" means a mathematical process or technique
used by a managed care plan in the audit of a participating
physician or provider to estimate audit results or findings for a
larger batch or group of claims not reviewed by the plan.
(b) A managed care plan may not use extrapolation to
complete an audit of a participating optometrist or therapeutic
optometrist. Any additional payment due to a participating
optometrist or therapeutic optometrist or any refund due to the
managed care plan must be based on the actual overpayment or
underpayment and may not be based on an extrapolation.
Sec. 1451.158. ENFORCEMENT OF SUBCHAPTER. (a) A violation
of this subchapter by a managed care plan is an unfair method of
competition or an unfair or deceptive act or practice in the
business of insurance under Chapter 541 and is subject to
enforcement under that chapter.
(b) Notwithstanding Section 541.002, a managed care plan
that provides vision benefits is considered a person for purposes
of enforcing this subchapter under Chapter 541.
SECTION 8. Sections 1451.154(d) and 1451.156(d), Insurance
Code, are repealed.
SECTION 9. The changes in law made by this Act apply only to
a contract between a managed care plan and an optometrist,
therapeutic optometrist, or ophthalmologist entered into or
renewed, or a managed care plan delivered, issued for delivery, or
renewed, on or after January 1, 2024. A contract entered into or
renewed, or a managed care plan delivered, issued for delivery, or
renewed, before January 1, 2024, is governed by the law as it
existed immediately before the effective date of this Act, and that
law is continued in effect for that purpose.
SECTION 10. This Act takes effect September 1, 2023.