By Driver                                             H.B. No. 3158
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the regulation of Health Maintenance Organizations.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Article 20A.02, Insurance Code is amended to read
    1-5  as follows:
    1-6        Art. 20A.02.  þNDefinitionsää.  For purposes of this Act:
    1-7        (a)  "Basic health care services" means health care services
    1-8  which an enrolled population might reasonably require in order to
    1-9  be maintained in good health, including, as a minimum, emergency
   1-10  care, inpatient hospital and medical services, and outpatient
   1-11  medical services.
   1-12        (b)  "Board" means the Texas Board of Health.
   1-13        (c)  "Capitation" means a method of compensation to a
   1-14  physician, group of physicians, provider group of providers,
   1-15  independent physician association or health maintenance
   1-16  organization based on a predetermined payment for certain enrollees
   1-17  in exchange for arranging for or providing, and guaranteeing the
   1-18  provision of, a defined set of covered health care services to such
   1-19  enrollees for a specified period of time, regardless of the amount
   1-20  of services actually provided.
   1-21        (d)  "Capitated person" means a physician, group of
   1-22  physicians, provider, group of providers, independent physician
   1-23  association or health maintenance organization who receive
    2-1  capitation in accordance with this Act.
    2-2        (e) <(c)>  "Commissioner" means the commissioner of insurance.
    2-3        (f) <(d)>  "Enrollee" means an individual who is enrolled in a
    2-4  health care plan, including covered dependents.
    2-5        (g) <(e)>  "Evidence of coverage" means any certificate,
    2-6  agreement, or contract issued to an enrollee setting out the
    2-7  coverage to which the enrollee is entitled.
    2-8        (h) <(f)>  "Group hospital service corporation" means a
    2-9  nonprofit corporation organized and operating under Chapter 20 of
   2-10  the Insurance Code.
   2-11        (i) <(g)>  "Health care" means prevention, maintenance,
   2-12  rehabilitation, pharmaceutical, and chiropractic services provided
   2-13  by qualified persons other than medical care.
   2-14        (j) <(h)>  "Health care plan" means any plan whereby any person
   2-15  undertakes to provide, arrange for, pay for, or reimburse any part
   2-16  of the cost of any health care services; provided, however, a part
   2-17  of such plan consists of arranging for or the provision of health
   2-18  care services, as distinguished from indemnification against the
   2-19  cost of such service, on a prepaid basis through insurance or
   2-20  otherwise.
   2-21        (k) <(i)>  "Health care services" means any services, including
   2-22  the furnishing to any individual of pharmaceutical services,
   2-23  medical, chiropractic, or dental care, or hospitalization or
   2-24  incident to the furnishing of such services, care, or
   2-25  hospitalization, as well as the furnishing to any person of any and
    3-1  all other services for the purpose of preventing, alleviating,
    3-2  curing or healing human illness or injury or a single health care
    3-3  service plan.
    3-4        (l) <(j)>  "Health maintenance organization" means any person
    3-5  who arranges for or provides a health care plan or a single health
    3-6  care service plan to enrollees on a prepaid basis.
    3-7        (m)  "Health maintenance organization delivery network" means
    3-8  any health care delivery system in which a health maintenance
    3-9  organization manages or provides a health care plan to enrollees
   3-10  through contracts or subcontracts with physicians and/or providers.
   3-11        (n) <(k)>  "Medical care" means furnishing those services
   3-12  defined as practicing medicine under <Section 1.03(8)> Section
   3-13  1.03(a)(12), Medical Practice Act (Article 4495b, Vernon's Texas
   3-14  Civil Statutes).
   3-15        (o) <(l)>  "Persons" means any natural or artificial person,
   3-16  including, <but not limited to,> individuals, partnerships,
   3-17  associations, organizations, trusts, hospital districts, <or>
   3-18  corporations, limited liability companies, or limited liability
   3-19  partnerships.
   3-20        (p) <(m)>  "Physician" means any person <anyone> licensed to
   3-21  practice medicine in the State of Texas<.>, any artificial person
   3-22  entirely owned and/or solely controlled by physicians, or any
   3-23  nonprofit corporation organized and complying with Section 5.01,
   3-24  Medical Practice Act (Article 4495b, Vernon's Texas Civil Statutes.
   3-25        (q) <(n)>  "Provider" means any person <practitioner> other than
    4-1  a physician, <such as a licensed doctor of chiropractic> including,
    4-2  but not limited to a registered nurse, pharmacist, optometrist,
    4-3  pharmacy, hospital, a physician-hospital organization, or other
    4-4  institution, organization or person that furnishes health care
    4-5  services who is licensed or otherwise authorized to deliver health
    4-6  care in this state or any person wholly owned or controlled by a
    4-7  provider or providers that are licensed to provide the same
    4-8  service.
    4-9        (r)  "Physician-hospital organization" means any person
   4-10  entirely owned and controlled by a group consisting of one or more
   4-11  providers and physicians.
   4-12        (s) <(o)>  "Sponsoring organization:  means a person who
   4-13  guarantees the uncovered expenses of the health maintenance
   4-14  organization and who is financially capable, as determined by the
   4-15  commissioner, of meeting the obligations resulting from those
   4-16  guarantees.
   4-17        (t) <(p)>  "Uncovered expenses" means the estimated
   4-18  administrative expenses and the estimated cost of health care
   4-19  services that are not guaranteed, insured, or assumed by a person
   4-20  other than the health maintenance organization.  Health care
   4-21  services may be considered covered if the physician or provider
   4-22  agrees in writing that enrollees shall in no way be liable,
   4-23  assessable, or in any way subject to payment for services except as
   4-24  described in the evidence of coverage issued to the enrollee under
   4-25  Section 9 of this Act.  The amount due on loans in the next
    5-1  calendar year will be considered uncovered expenses unless
    5-2  specifically subordinated to uncovered medical and health care
    5-3  expenses or unless guaranteed by the sponsoring organization.
    5-4        (u) <(q)>  "Uncovered liabilities" means obligations resulting
    5-5  from unpaid uncovered expenses, the outstanding indebtedness of
    5-6  loans that are not specifically subordinated to uncovered medical
    5-7  and health care expenses or guaranteed by the sponsoring
    5-8  organization, and all other monetary obligations that are not
    5-9  similarly subordinated or guaranteed.
   5-10        (v) <(r)>  "Single health care service" means a health care
   5-11  service that an enrolled population may reasonably require in order
   5-12  to be maintained in good health with respect to a particular health
   5-13  care need for the purpose of preventing, alleviating, curing, or
   5-14  healing human illness or injury of a single specified nature and
   5-15  that is to be provided by one or more persons each of whom is
   5-16  licensed by the state to provide that specific health care service.
   5-17        (w) <(s)>  "Single health care service plan" means a plan under
   5-18  which any person undertakes to provide, arrange for, pay for, or
   5-19  reimburse any part of the cost of a single health care service,
   5-20  provided, that a part of the plan consists of arranging for or the
   5-21  provision of the single health care service, as distinguished from
   5-22  an indemnification against the cost of that service, on a prepaid
   5-23  basis through insurance or otherwise and that no part of that plan
   5-24  consists of arranging for the provision of more than one health
   5-25  care need of a single specified nature.
    6-1        (x) <(t)>  "Emergency care" means bona fide emergency services
    6-2  provided after the sudden onset of a medical condition manifesting
    6-3  itself by acute symptoms or sufficient severity, including severe
    6-4  pain, such that the absence of immediate medical attention could
    6-5  reasonably be expected to result in:
    6-6              (1)  placing the patient's health in serious jeopardy;
    6-7              (2)  serious impairment to bodily functions; or
    6-8              (3)  serious dysfunction of any bodily organ or part.
    6-9        SECTION 2.  Art. 20A.05., Insurance Code, is amended to read
   6-10  as follows:
   6-11        Art. 20A.05.  Issuance of Certificate of Authority.
   6-12  (a)(1)  Upon receipt of an application for issuance of a
   6-13  certificate of authority, the commissioner shall begin
   6-14  consideration of the application and forthwith transmit copies of
   6-15  such application and accompanying documents to the board.
   6-16              (2)  The commissioner, with the advice of the board,
   6-17  shall determine whether the applicant for a certificate of
   6-18  authority, with respect to health care services to be furnished:
   6-19                    (A)  has demonstrated the willingness and
   6-20  potential ability to assure that such health care services will be
   6-21  provided in a manner to assure both availability and accessibility
   6-22  of adequate personnel and facilities, in a manner enhancing
   6-23  availability, accessibility, and continuity of services;
   6-24                    (B)  has arrangements, established in accordance
   6-25  with rules and regulations promulgated by <the board with the
    7-1  concurrence of> the commissioner, for an ongoing quality of health
    7-2  care assurance program concerning health care processes and
    7-3  outcome; and
    7-4                    (C)  has a procedure, established by rules and
    7-5  regulations of the <board with the concurrence of the> commissioner,
    7-6  to develop, compile, evaluate, and report statistics relating to
    7-7  the cost of operation, the pattern of utilization of its services,
    7-8  availability and accessibility of its services.
    7-9                    (D)  has demonstrated appropriate compensation
   7-10  mechanisms for health care services will be used in order to
   7-11  facilitate the provision of quality health care at reasonable cost
   7-12  to the enrollees.  If the applicant will use a capitation method of
   7-13  compensation, the applicant shall establish and follow procedures
   7-14  which assure the following:
   7-15                          (i)  each enrollee is assigned to a
   7-16  capitated person for purposes of determining capitation payments;
   7-17                          (ii)  capitation payments on a per member
   7-18  per month basis are calculated beginning from the initial date of
   7-19  enrollment of the enrollee or the initial date of the most recent
   7-20  change in assignment from one capitated person to another; and
   7-21                          (iii)  a capitated person is physically
   7-22  located within a reasonable travel distance as may be established
   7-23  by rule, from the assigned enrollee's residence or place of
   7-24  employment.
   7-25              (3)  Within 45 days of receipt of this application by
    8-1  the commissioner <the board> for issuance of a certificate <of
    8-2  authority, the board shall certify to> the commissioner shall
    8-3  determine whether the proposed health maintenance organization
    8-4  meets the requirements of this section.  If the commissioner
    8-5  determines <board certifies> that the health maintenance organization
    8-6  does not meet such requirements, he <it> shall specify in what
    8-7  respects it is deficient.
    8-8        (b)  The commissioner shall, after notice and hearing, issue
    8-9  or deny a certificate of authority to any person filing an
   8-10  application pursuant to Section 4 of this Act within 75 days of the
   8-11  determination by the commissioner <receipt of the certification of
   8-12  the board;> provided, however, that the commissioner may grant a
   8-13  delay of final action on the application to an applicant.  Issuance
   8-14  of the certificate of authority shall be granted upon payment of
   8-15  the application fee prescribed in Section 32 of this Act if:
   8-16              (1)  the commissioner determines <board certifies> that
   8-17  the health maintenance organization's proposed plan of operation
   8-18  meets the requirements of Subsection (a)(2) of this section; and
   8-19              (2)  the commissioner is satisfied that:
   8-20                    (A)  the person responsible for the conduct of
   8-21  the affairs of the applicant is competent, trustworthy, and
   8-22  possesses a good reputation;
   8-23                    (B)  the health care plan or single health care
   8-24  service plan constitutes an appropriate mechanism whereby the
   8-25  health maintenance organization will effectively provide or arrange
    9-1  for the provision of basic health care services or single health
    9-2  care service on a prepaid basis, through insurance or otherwise,
    9-3  except to the extent of reasonable requirements for co-payment;
    9-4                    (C)  the health maintenance organization is fully
    9-5  responsible and may reasonably be expected to meet its obligations
    9-6  to enrollees and prospective enrollees.  In making this
    9-7  determination, the commissioner shall consider:
    9-8                          (i)  the financial soundness of the health
    9-9  care plan's arrangement for health care services and a schedule of
   9-10  charges used in connection therewith;
   9-11                          (ii)  the adequacy of working capital;
   9-12                          (iii)  any agreement with an insurer, group
   9-13  hospital service corporation, a political subdivision of
   9-14  government, or any other organization for insuring the payment of
   9-15  the cost of health care services or the provision for automatic
   9-16  applicability of an alternative coverage in the event of
   9-17  discontinuance of plan;
   9-18                          (iv)  any agreement which provides for the
   9-19  provision of health care services; and
   9-20                          (v)  any deposit of cash or securities
   9-21  submitted in accordance with Section 13 of this Act as a guarantee
   9-22  that the obligations will be duly performed;
   9-23                    (D)  nothing in the proposed method of operation,
   9-24  as shown by the information submitted pursuant to Section 4 of this
   9-25  Act, or by independent investigation, is contrary to Texas law.
   10-1        (c)  If <the board> or the commissioner determines <or both
   10-2  shall certify> that the health maintenance organization's proposed
   10-3  plan of operation does not meet the requirements of this section,
   10-4  the commissioner shall not issue the certificate of authority.  The
   10-5  commissioner shall notify the applicant that it is deficient, and
   10-6  shall specify in what respects it is deficient.
   10-7        (d)  A certificate of authority shall continue in force as
   10-8  long as the person to whom it is issued meets the requirements of
   10-9  this Act or until suspended or revoked by the commissioner or
  10-10  terminated at the request of the certificate holder.  Any change in
  10-11  control, as defined by Article 21.49-1 of the Insurance Code of
  10-12  Texas, of the health maintenance organization, shall be subject to
  10-13  the approval of the commissioner.
  10-14        SECTION 3.  Article 20A.06(a), Insurance Code, is amended to
  10-15  read as follows:
  10-16        Art. 20A.06.  þNPowers of Health Maintenance Organizations.ää
  10-17  (a)  The powers of a health maintenance organization include<, but
  10-18  are not limited to,> the following:
  10-19              (1)  the purchase, lease, construction, renovation,
  10-20  operation, or maintenance of hospitals, medical facilities, or
  10-21  both, and ancillary equipment and such property as may reasonably
  10-22  be required for its principal office or for such other purposes as
  10-23  may be necessary in the transaction of the business of the health
  10-24  maintenance organization;
  10-25              (2)  the making of loans to a medical group, under an
   11-1  independent contract with it in furtherance of its program, or
   11-2  corporations under its control, for the purpose of acquiring or
   11-3  constructing medical facilities and hospitals, or in the
   11-4  furtherance of a program providing health care services to
   11-5  enrollees;
   11-6              (3)  the furnishing of or arranging for medical care
   11-7  services only through other health maintenance organization or
   11-8  physicians or groups of physicians who have independent contracts
   11-9  with the health maintenance organizations; the furnishing of or
  11-10  arranging for the delivery of health care services only through
  11-11  other health maintenance organizations or providers or groups of
  11-12  providers who are under contract with or employed by the health
  11-13  maintenance organization or through other health maintenance
  11-14  organizations, physicians or providers who have contracted for
  11-15  health care services with those physicians or providers except that
  11-16  a health maintenance organization can also furnish or authorize <for
  11-17  the furnishing of or authorization for> emergency services, services
  11-18  by referral, and services to be provided outside of the service
  11-19  area as approved by the commissioner; provided, however, that a
  11-20  health maintenance organization is not authorized to employ or
  11-21  contract with physicians or providers in any manner which is
  11-22  prohibited by any licensing law of this state under which such
  11-23  physicians or providers are licensed.
  11-24        SECTION 4.  Article 20A.26(f), Insurance Code, is amended to
  11-25  read as follows:
   12-1        (f)(1)  This Act shall not be applicable to:
   12-2                    (A)  any physician, so long as that physician is
   12-3  engaged in or arranges for the delivery of health or medical care
   12-4  that is within the definition of practicing medicine as defined in
   12-5  Section 2 of this Act and/or the delivery of health care services
   12-6  incident to said practice of medicine and is complying with the
   12-7  provisions of section 26(f)(3) of this Act; or
   12-8                    (B)  any provider that furnishes and/or arranges
   12-9  for the delivery of health care services other than the practice of
  12-10  medicine, as defined in Section 2 of this Act as part of a health
  12-11  maintenance delivery network.
  12-12              (2)  Notwithstanding any other law, any person,
  12-13  physician or provider referred to above, which conducts activities
  12-14  permitted by law but which do not require a certificate of
  12-15  authority under this Act, and in the process contracts with one or
  12-16  more physicians, or providers referred to above, shall not by
  12-17  virtue of such contract or arrangement, be deemed to have entered
  12-18  into a conspiracy in restraint of trade in violation of Sections
  12-19  15.01 through 15.34 of the Business & Commerce Code.
  12-20        <(f)(1)  This Act shall not be applicable to any person
  12-21  licensed to practice medicine in this state, nor to any
  12-22  professional association organized under the Texas Professional
  12-23  Association Act, as amended (Article 1528f, Vernon's Texas Civil
  12-24  Statutes), nor to any nonprofit corporation organized and complying
  12-25  with Section 5.01, Medical Practice Act (Article 4495b, Vernon's
   13-1  Texas Civil Statutes), so long as that person, professional
   13-2  association, or nonprofit corporation is engaged in the delivery of
   13-3  health or medical care that is within the definition of practicing
   13-4  medicine as defined in Section 2(k) of this Act.>
   13-5              <(2)  Except as provided by Section 6(a)(3) of this Act,
   13-6  any person, professional association, or nonprofit corporation
   13-7  referred to above, which shall employ or enter into a contractual
   13-8  arrangement with a provider or group of providers to furnish basic
   13-9  health care services as defined in Section 2 of this Act, would be
  13-10  subject to the provisions of this Act, and shall be required to
  13-11  obtain a certificate of authority from the commissioner.>
  13-12              <(3)  Notwithstanding any other law, any person,
  13-13  professional association, or nonprofit corporation referred to
  13-14  above, which conducts activities permitted by law but which do not
  13-15  require a certificate of authority under this Act, and in the
  13-16  process contracts with one or more physicians, professional
  13-17  associations, or nonprofit corporations referred to above, shall
  13-18  not, by virtue of such contract or arrangement, be deemed to have
  13-19  entered into a conspiracy in restraint of trade in violation of
  13-20  Sections 15.01 through 15.34 of the Business & Commerce Code.>
  13-21              (3)  Notwithstanding any other law, provisions of the
  13-22  insurance law and the provisions of the group hospital service
  13-23  corporation law shall not be applicable to the above persons,
  13-24  physicians or providers.
  13-25              (4)  Neither this Act nor any other provision of the
   14-1  Insurance Code shall be construed to prohibit any physician or
   14-2  provider participating in a health maintenance organization
   14-3  delivery network, whether contracting with a health maintenance
   14-4  organization pursuant to Section 6(a)(3) of this Act or
   14-5  subcontracting with any physician or provider in the health
   14-6  maintenance organization network, from entering into any of the
   14-7  following contractual arrangements;
   14-8                    (A)  A physician may contract to provide and/or
   14-9  arrange to provide through subcontracts with other physicians
  14-10  medical care as defined in Section 2 of this Act and through other
  14-11  providers any services that are ancillary to or within the scope of
  14-12  the practice of medicine, not including hospital or any other
  14-13  institutional or inpatient provider services.
  14-14                    (B)  A provider may contract to provide and/or
  14-15  arrange to provide through subcontracts with other providers any
  14-16  health care services for which provider is licensed to provide, not
  14-17  to include any medical care services as defined in Section 2 of
  14-18  this Act.
  14-19                    (C)  A provider may contract to provide and/or
  14-20  arrange to provide through subcontracts with other providers any
  14-21  health care services for which such provider is not licensed to
  14-22  provide, not to include any medical services as defined in Section
  14-23  2 of this Act, only if such subcontracted services constitute less
  14-24  than fifteen percent of the total volume of services to be provided
  14-25  and/or arranged to be provided by such provider.
   15-1                    (D)  Any contract or subcontract permitted in
   15-2  (A), (B) or (C) above may provide for compensation based on a
   15-3  fee-for-service arrangement, risk sharing arrangement, and/or
   15-4  capitated risk arrangement in which a fixed predetermined payment
   15-5  is made in exchange for providing and/or arranging to provide, and
   15-6  guaranteeing the provision of a defined set of covered services to
   15-7  such covered persons for a specified period of time, regardless of
   15-8  the amount of services actually provided.
   15-9        SECTION 5.  EMERGENCY.  The importance of this legislation
  15-10  and the crowded condition of the calendars in both houses create an
  15-11  emergency and an imperative public necessity that the
  15-12  constitutional rule requiring bills to be read on three several
  15-13  days in each house be suspended, and this rule is hereby suspended,
  15-14  and that this Act take effect and be in force according to its
  15-15  terms, and it is so enacted.