Texas 2023 - 88th Regular

Texas Senate Bill SB860 Compare Versions

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1	1	88R8785 CJD-F
2	2	By: Hughes S.B. No. 860
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the relationship between managed care plans and
8	8	optometrists, therapeutic optometrists, and ophthalmologists.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 1451.151(1), Insurance Code, is amended
11	11	to read as follows:
12	12	(1) "Managed care plan" means a plan under which a
13	13	health maintenance organization, preferred provider benefit plan
14	14	issuer, vision benefit plan issuer, vision benefit plan
15	15	administrator, or other organization provides or arranges for
16	16	health care benefits or vision benefits to plan participants and
17	17	requires or encourages plan participants to use health care
18	18	practitioners the plan designates.
19	19	SECTION 2. Section 1451.153, Insurance Code, is amended to
20	20	read as follows:
21	21	Sec. 1451.153. USE OF OPTOMETRIST, THERAPEUTIC
22	22	OPTOMETRIST, OR OPHTHALMOLOGIST. (a) A managed care plan may not:
23	23	(1) discriminate against a health care practitioner
24	24	because the practitioner is an optometrist, therapeutic
25	25	optometrist, or ophthalmologist;
26	26	(2) restrict or discourage a plan participant from
27	27	obtaining covered vision or medical eye care services or procedures
28	28	from a participating optometrist, therapeutic optometrist, or
29	29	ophthalmologist solely because the practitioner is an optometrist,
30	30	therapeutic optometrist, or ophthalmologist;
31	31	(3) exclude an optometrist, therapeutic optometrist,
32	32	or ophthalmologist as a participating practitioner in the plan
33	33	because the optometrist, therapeutic optometrist, or
34	34	ophthalmologist does not have medical staff privileges at a
35	35	hospital or at a particular hospital;
36	36	(4) deny participation of an optometrist, therapeutic
37	37	optometrist, or ophthalmologist as a participating practitioner in
38	38	the plan if the optometrist, therapeutic optometrist, or
39	39	ophthalmologist meets the plan's credentialing requirements and
40	40	agrees to the plan's contractual terms;
41	41	(5) create, offer, or use a contractual fee schedule
42	42	that reimburses an optometrist, therapeutic optometrist, or
43	43	ophthalmologist differently from another optometrist, therapeutic
44	44	optometrist, or ophthalmologist based on professional degree held;
45	45	(6) identify a participating optometrist, therapeutic
46	46	optometrist, or ophthalmologist differently from other
47	47	participating health care practitioners based on any
48	48	characteristic other than professional degree held;
49	49	(7) incentivize, recommend, encourage, persuade, or
50	50	attempt to persuade an enrollee to obtain covered or uncovered
51	51	products or services:
52	52	(A) at any particular participating optometrist,
53	53	therapeutic optometrist, or ophthalmologist instead of another
54	54	participating optometrist, therapeutic optometrist, or
55	55	ophthalmologist;
56	56	(B) at a retail establishment owned by, partially
57	57	owned by, contracted with, or otherwise affiliated with the managed
58	58	care plan instead of a different participating optometrist,
59	59	therapeutic optometrist, or ophthalmologist; or
60	60	(C) at any Internet or virtual provider or
61	61	retailer owned by, partially owned by, contracted with, or
62	62	otherwise affiliated with the managed care plan instead of a
63	63	different participating optometrist, therapeutic optometrist, or
64	64	ophthalmologist;
65	65	(8) exclude an optometrist, therapeutic optometrist,
66	66	or ophthalmologist as a participating practitioner in the plan
67	67	because the services or procedures provided by the optometrist,
68	68	therapeutic optometrist, or ophthalmologist may be provided by
69	69	another type of health care practitioner; or
70	70	(9) [(5)] as a condition for a therapeutic optometrist
71	71	or ophthalmologist to be included in one or more of the plan's
72	72	medical panels, require the therapeutic optometrist or
73	73	ophthalmologist to be included in, or to accept the terms of payment
74	74	under or for, a particular vision panel in which the therapeutic
75	75	optometrist or ophthalmologist does not otherwise wish to be
76	76	included.
77	77	(b) A managed care plan shall:
78	78	(1) include optometrists, therapeutic optometrists,
79	79	and ophthalmologists as participating health care practitioners in
80	80	the plan; [and]
81	81	(2) include the name of a participating optometrist,
82	82	therapeutic optometrist, or ophthalmologist in any list of
83	83	participating health care practitioners and give equal prominence
84	84	to each name;
85	85	(3) provide directly to an optometrist, therapeutic
86	86	optometrist, ophthalmologist, or plan enrollee immediate access by
87	87	electronic means to an enrollee's complete plan coverage
88	88	information, including in-network and out-of-network coverage
89	89	details;
90	90	(4) publish complete plan information, including
91	91	in-network and out-of-network coverage details, with any marketing
92	92	materials that describe the plan benefits, including any summary
93	93	plan description;
94	94	(5) allow an optometrist, therapeutic optometrist, or
95	95	ophthalmologist to utilize any third-party claim-filing service,
96	96	billing service, or electronic data interchange clearinghouse
97	97	company that uses the standardized claim submission protocol of the
98	98	National Uniform Claim Committee to facilitate the authorization,
99	99	submission, and reimbursement of claims; and
100	100	(6) allow an optometrist, therapeutic optometrist, or
101	101	ophthalmologist to receive reimbursement through an automated
102	102	clearinghouse electronic funds transfer.
103	103	(c) For the purposes of Subsection (a)(9) [(a)(5)],
104	104	"medical panel" and "vision panel" have the meanings assigned by
105	105	Section 1451.154(a).
106	106	SECTION 3. Section 1451.154(c), Insurance Code, is amended
107	107	to read as follows:
108	108	(c) A therapeutic optometrist who is included in a managed
109	109	care plan's medical panels under Subsection (b) must:
110	110	(1) abide by the terms and conditions of the managed
111	111	care plan;
112	112	(2) satisfy the managed care plan's credentialing
113	113	standards for therapeutic optometrists; and
114	114	(3) provide proof that the Texas Optometry Board
115	115	considers the therapeutic optometrist's license to practice
116	116	therapeutic optometry to be in good standing[; and
117	117	[(4) comply with the requirements of the Controlled
118	118	Substances Registration Program operated by the Department of
119	119	Public Safety].
120	120	SECTION 4. Section 1451.155, Insurance Code, is amended to
121	121	read as follows:
122	122	Sec. 1451.155. CONTRACTS WITH OPTOMETRISTS OR THERAPEUTIC
123	123	OPTOMETRISTS. (a) In this section:
124	124	(1) "Chargeback" means a dollar amount, fee,
125	125	surcharge, or item of value that reduces, modifies, or offsets all
126	126	or part of the patient responsibility, provider reimbursement, or
127	127	fee schedule for a covered product or service.
128	128	(2) "Covered product or service" means a medical or
129	129	vision care product or service for which reimbursement is available
130	130	under an enrollee's managed care plan contract or for which
131	131	reimbursement is available subject to a contractual limitation,
132	132	including:
133	133	(A) a deductible;
134	134	(B) a copayment;
135	135	(C) coinsurance;
136	136	(D) a waiting period;
137	137	(E) an annual or lifetime maximum limit;
138	138	(F) a frequency limitation; or
139	139	(G) an alternative benefit payment.
140	140	(3) [(2)] "Medical or vision [Vision] care product or
141	141	service" means a product or service provided within the scope of the
142	142	practice of optometry or therapeutic optometry under Chapter 351,
143	143	Occupations Code.
144	144	(a-1) For the purposes of this section, a product or service
145	145	reimbursed to an optometrist or therapeutic optometrist at a
146	146	nominal or de minimis rate is not a covered product or service.
147	147	(a-2) For the purposes of this section, a product or service
148	148	reimbursed to an optometrist or therapeutic optometrist solely by
149	149	the enrollee is not a covered product or service.
150	150	(b) A contract between a managed care plan [an insurer] and
151	151	an optometrist or therapeutic optometrist may not limit the fee the
152	152	optometrist or therapeutic optometrist may charge for a product or
153	153	service that is not a covered product or service.
154	154	(c) A contract between a managed care plan [an insurer] and
155	155	an optometrist or therapeutic optometrist may not require a
156	156	discount on a product or service that is not a covered product or
157	157	service.
158	158	(d) A contract between a managed care plan and an
159	159	optometrist or therapeutic optometrist may not contain a provision
160	160	authorizing a chargeback to the patient, optometrist, or
161	161	therapeutic optometrist if the chargeback is for a covered product
162	162	or service that the managed care plan does not produce, deliver, or
163	163	provide.
164	164	(e) A contract between a managed care plan and an
165	165	optometrist or therapeutic optometrist may not contain a provision
166	166	authorizing a reimbursement fee schedule for a covered product or
167	167	service that is different from the fee schedule applicable to
168	168	another optometrist or therapeutic optometrist because of the
169	169	optometrist's or therapeutic optometrist's choice of:
170	170	(1) optical laboratory;
171	171	(2) source or supplier of:
172	172	(A) contact lenses;
173	173	(B) ophthalmic lenses;
174	174	(C) ophthalmic glasses frames; or
175	175	(D) covered or uncovered products or services;
176	176	(3) equipment used for patient care;
177	177	(4) retail optical affiliation;
178	178	(5) vision support organization;
179	179	(6) group purchasing organization;
180	180	(7) doctor alliance;
181	181	(8) professional trade association membership;
182	182	(9) affiliation with an arrangement defined as a
183	183	franchise by 16 C.F.R. Part 436;
184	184	(10) electronic health record software, electronic
185	185	medical record software, or practice management software; or
186	186	(11) third-party claim-filing service, billing
187	187	service, or electronic data interchange clearinghouse company.
188	188	(f) A managed care plan may not change a contract between a
189	189	managed care plan and an optometrist or therapeutic optometrist,
190	190	including terms, reimbursements, or fee schedules, unless:
191	191	(1) the managed care plan provides written notice of
192	192	the change to the optometrist or therapeutic optometrist at least
193	193	90 days before the date the proposed change takes effect; and
194	194	(2) the optometrist or therapeutic optometrist
195	195	affirmatively agrees in writing to the change.
196	196	(g) A contract between a managed care plan and an
197	197	optometrist or therapeutic optometrist may not contain a provision
198	198	requiring a patient, optometrist, or therapeutic optometrist to
199	199	obtain precertification or prior authorization for a covered
200	200	product or service provided by the optometrist or therapeutic
201	201	optometrist.
202	202	(h) A contract between a managed care plan and an
203	203	optometrist or therapeutic optometrist may not contain a provision
204	204	requiring the optometrist or therapeutic optometrist to provide a
205	205	covered product or service at a loss.
206	206	(i) A contract between a managed care plan and an
207	207	optometrist or therapeutic optometrist may not contain a provision
208	208	requiring the optometrist or therapeutic optometrist to accept a
209	209	reimbursement payment in the form of a virtual credit card or any
210	210	other payment method where a processing fee, administrative fee,
211	211	percentage amount, or dollar amount is assessed to receive the
212	212	reimbursement payment, except in the case of a nominal fee assessed
213	213	by the optometrist's or therapeutic optometrist's bank to receive
214	214	an electronic funds transfer.
215	215	SECTION 5. The heading to Section 1451.156, Insurance Code,
216	216	is amended to read as follows:
217	217	Sec. 1451.156. CERTAIN CONDUCT PROHIBITED [CONDUCT].
218	218	SECTION 6. Section 1451.156(a), Insurance Code, is amended
219	219	to read as follows:
220	220	(a) A managed care plan, as described by Section
221	221	1451.152(a), may not directly or indirectly:
222	222	(1) control or attempt to control the professional
223	223	judgment, manner of practice, or practice of an optometrist or
224	224	therapeutic optometrist;
225	225	(2) employ an optometrist or therapeutic optometrist
226	226	to provide a vision care product or service as defined by Section
227	227	1451.155;
228	228	(3) pay an optometrist or therapeutic optometrist for
229	229	a service not provided;
230	230	(4) reimburse an optometrist or therapeutic
231	231	optometrist a different amount for a covered product or service as
232	232	defined by Section 1451.155 because of the optometrist's or
233	233	therapeutic optometrist's choice of:
234	234	(A) optical laboratory;
235	235	(B) source or supplier of:
236	236	(i) contact lenses;
237	237	(ii) ophthalmic lenses;
238	238	(iii) ophthalmic glasses frames; or
239	239	(iv) covered or uncovered products or
240	240	services;
241	241	(C) equipment used for patient care;
242	242	(D) retail optical affiliation;
243	243	(E) vision support organization;
244	244	(F) group purchasing organization;
245	245	(G) doctor alliance;
246	246	(H) professional trade association membership;
247	247	(I) affiliation with an arrangement defined as a
248	248	franchise by 16 C.F.R. Part 436;
249	249	(J) electronic health record software,
250	250	electronic medical record software, or practice management
251	251	software; or
252	252	(K) third-party claim-filing service, billing
253	253	service, or electronic data interchange clearinghouse company;
254	254	(5) restrict, [or] limit, or influence an
255	255	optometrist's or therapeutic optometrist's choice of sources or
256	256	suppliers of services or materials, including optical laboratories
257	257	used by the optometrist or therapeutic optometrist to provide
258	258	services or materials to a patient;
259	259	(6) restrict, limit, or influence an optometrist's or
260	260	therapeutic optometrist's choice of electronic health record
261	261	software, electronic medical record software, or practice
262	262	management software;
263	263	(7) restrict, limit, or influence an optometrist's or
264	264	therapeutic optometrist's choice of third-party claim-filing
265	265	service, billing service, or electronic data interchange
266	266	clearinghouse company;
267	267	(8) restrict or limit an optometrist's or therapeutic
268	268	optometrist's access to a patient's complete plan coverage
269	269	information, including in-network and out-of-network coverage
270	270	details;
271	271	(9) apply a chargeback, as defined by Section
272	272	1451.155, to a patient, optometrist, or therapeutic optometrist if
273	273	the chargeback is for a covered product or service that the managed
274	274	care plan does not produce, deliver, or provide;
275	275	(10) require an optometrist or therapeutic
276	276	optometrist to provide a covered product at a loss; [or]
277	277	(11) [(5)] require an optometrist or therapeutic
278	278	optometrist to disclose a patient's confidential or protected
279	279	health information unless the disclosure is authorized by the
280	280	patient or permitted without authorization under the Health
281	281	Insurance Portability and Accountability Act of 1996 (42 U.S.C.
282	282	Section 1320d et seq.) or under Section 602.053;
283	283	(12) require an optometrist or therapeutic
284	284	optometrist to disclose or report a medical history or diagnosis as
285	285	a condition to file a claim, adjudicate a claim, or receive
286	286	reimbursement for a routine or wellness vision eye exam;
287	287	(13) require an optometrist or therapeutic
288	288	optometrist to disclose or report a patient's glasses prescription,
289	289	contact lens prescription, ophthalmic device measurements, facial
290	290	photograph, or unique anatomical measurements as a condition to
291	291	file a claim, adjudicate a claim, or receive reimbursement for a
292	292	claim;
293	293	(14) require an optometrist or therapeutic
294	294	optometrist to disclose any patient information, other than
295	295	information identified on the version of the Health Insurance Claim
296	296	Form approved by the National Uniform Claim Committee as of March 1,
297	297	2023, as a condition to file a claim, adjudicate a claim, or receive
298	298	reimbursement for a claim;
299	299	(15) require a patient, optometrist, or therapeutic
300	300	optometrist to obtain precertification or prior authorization for a
301	301	covered product or service provided by the optometrist or
302	302	therapeutic optometrist;
303	303	(16) require an optometrist or therapeutic
304	304	optometrist to provide a covered product or service at a loss; or
305	305	(17) require an optometrist or therapeutic
306	306	optometrist to accept a reimbursement payment in the form of a
307	307	virtual credit card or any other payment method where a processing
308	308	fee, administrative fee, percentage amount, or dollar amount is
309	309	assessed to receive the reimbursement payment, except in the case
310	310	of a nominal fee assessed by the optometrist's or therapeutic
311	311	optometrist's bank to receive an electronic funds transfer.
312	312	SECTION 7. Subchapter D, Chapter 1451, Insurance Code, is
313	313	amended by adding Sections 1451.157 and 1451.158 to read as
314	314	follows:
315	315	Sec. 1451.157. EXTRAPOLATION PROHIBITED. (a) In this
316	316	section, "extrapolation" means a mathematical process or technique
317	317	used by a managed care plan in the audit of a participating
318	318	physician or provider to estimate audit results or findings for a
319	319	larger batch or group of claims not reviewed by the plan.
320	320	(b) A managed care plan may not use extrapolation to
321	321	complete an audit of a participating optometrist or therapeutic
322	322	optometrist. Any additional payment due to a participating
323	323	optometrist or therapeutic optometrist or any refund due to the
324	324	managed care plan must be based on the actual overpayment or
325	325	underpayment and may not be based on an extrapolation.
326	326	Sec. 1451.158. ENFORCEMENT OF SUBCHAPTER. (a) A violation
327	327	of this subchapter by a managed care plan is an unfair method of
328	328	competition or an unfair or deceptive act or practice in the
329	329	business of insurance under Chapter 541 and is subject to
330	330	enforcement under that chapter.
331	331	(b) Notwithstanding Section 541.002, a managed care plan
332	332	that provides vision benefits is considered a person for purposes
333	333	of enforcing this subchapter under Chapter 541.
334	334	SECTION 8. Sections 1451.154(d) and 1451.156(d), Insurance
335	335	Code, are repealed.
336	336	SECTION 9. The changes in law made by this Act apply only to
337	337	a contract between a managed care plan and an optometrist,
338	338	therapeutic optometrist, or ophthalmologist entered into or
339	339	renewed, or a managed care plan delivered, issued for delivery, or
340	340	renewed, on or after January 1, 2024. A contract entered into or
341	341	renewed, or a managed care plan delivered, issued for delivery, or
342	342	renewed, before January 1, 2024, is governed by the law as it
343	343	existed immediately before the effective date of this Act, and that
344	344	law is continued in effect for that purpose.
345	345	SECTION 10. This Act takes effect September 1, 2023.