SRC-CDH S.B. 385 75(R)    BILL ANALYSIS


Senate Research CenterS.B. 385
By: Sibley
Economic Development
2-17-97
As Filed


DIGEST 

Currently, managed care systems continue to change the delivery of health
care in Texas.  Since the onset of managed care, the state's market has
seen tremendous growth, with the number of HMO enrollees increasing by
64.4 percent since 1992.  During the 74th Interim, the Senate Interim
Committee on Managed Care and Consumer Protections was charged with
reviewing Texas statutes and agency regulations to ensure the availability
and effectiveness of important consumer safeguards. This legislation
establishes the transfer of quality of care oversight functions from the
Texas Department of Health  (TDH) to the Texas Department of Insurance
(TDI).  In addition, this bill provides strengthening and codification of
certain TDI and TDH rules regarding access and quality of care, and
recommendations of the Interim Committee for improved consumer
protections. 
  
PURPOSE

As proposed, S.B. 385 establishes the regulation of health maintenance
organizations.  

RULEMAKING AUTHORITY

Rulemaking authority is granted to the commissioner of insurance in
SECTIONS 3, 5, 11, 12, 16, 18, 19, 23, and 24 (Articles 20A.04(b),
20A.09(m), 20A.15(g), 20A.15A(h), 20A.19(b), 20A.22(a)(c), 20A.23(a),
20A.36(e), and 20A.37(b), Insurance Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Article 20A.02, Insurance Code (Texas Health Maintenance
Organization Act), to define "adverse determination," "capitation,"
"complainant," "complaint," and "emergency care."  Redefines "basic health
care services."  Deletes the definitions for "board" and "emergency care."
Makes conforming changes. 

SECTION 2. Amends Article 20A.03, Insurance Code, by adding Subsections
(e)-(g), to prohibit a person or provider from directly or indirectly
performing any of the acts of a health maintenance organization (HMO),
except in accordance with  this Act, and requires any person or provider
in violation of this prohibition to be subject to all enforcement
processes and procedures of an authorized insurer pursuant to Sections 3
and 3A, Article 1.14-1, Insurance Code.  Requires the commissioner of
insurance (commissioner) to have subpoena authority in accordance with
Article 1.19-1, Insurance Code.     

SECTION 3. Amends Article 20A.04, Insurance Code, to establish the
conditions by which each application for a certificate of authority is
required to contain a written description of health care plan terms and
conditions; network configuration information; a written description of
the specific compensation arrangements; documentation demonstrating that
the HMO will pay for emergency care services performed by non-network
physicians or providers at certain rates; and that the health care plan
contains certain provisions and procedures for coverage of emergency care
services.  Sets forth the terms by which the commissioner, rather than the
State Board of Insurance, is authorized to promulgate rules and
regulations requiring an HMO to submit modifications or amendments to the
operations or documents described in Subsection (a) of this section to the
commissioner.  Makes conforming changes. 


 SECTION 4. Amends Article 20A.05, Insurance Code, to delete the provision
requiring the commissioner to begin consideration of an application for
issuance of a certificate of authority and transmit copies of the
application and accompanying documents to the board upon receipt of the
application.  Deletes the provision requiring the Texas Board of Health to
determine whether the applicant has met certain  requirements.  Sets forth
the terms by which the commissioner is required to issue or deny a
certificate within 75 days of the receipt of a completed application,
provided certain conditions exist.  Requires the issuance of the
certificate of authority to be granted upon payment of the application fee
if the commissioner is satisfied that the applicant has demonstrated the
willingness and ability to assure that such health care services will be
provided in a suitable manner; has arrangements for an ongoing quality of
health care assurance program; and has a procedure to compile, evaluate,
and report statistics relating to the cost of operation and utilization
and quality of its services.  Makes conforming changes.   

SECTION 5. Amends Article 20A.09, Insurance Code, to establish the terms
by which evidence of coverage under a health care plan is required to
contain a provision requiring an HMO to allow referral to a nonnetwork
physician or provider if medically necessary covered services are
unavailable through network providers; allowing enrollees which chronic,
disabling, or lifethreatening illnesses to apply for a nonprimary care
physician specialist as a primary care physician; authorizing an enrollee
who is denied the request for a nonprimary care physician specialist to
appeal the decision; and prohibiting the effective date regarding the new
designation of a nonprimary care physician from being retroactive.
Requires an HMO to comply with Article 21.55, Insurance Code, with respect
to prompt payment to enrollees, and deletes existing subsection.  Sets
forth the terms by which an HMO is required to make payment to a physician
or provider, and provide basic health care services to its enrollees.
Authorizes the commissioner to adopt minimum standards relating to basic
health care services.  Defines "covered services."  Makes conforming
changes. 

SECTION 6. Amends Article 20A.11, Insurance Code, as follows:

Sec. 11.  New heading:  INFORMATION TO PROSPECTIVE AND CURRENT GROUP
CONTRACT HOLDERS AND ENROLLEES.  Requires a plan application form to
include a space in which the enrollee is required to make a selection of a
primary care physician or provider.  Sets forth the terms by which an
enrollee is required to have the right to make that selection, and
authorizes an HMO to limit an enrollee's requested changes to no more than
four in any 12-month period.  Establishes the conditions by which an HMO
is required to provide on request a written description of health care
plan terms and conditions, and notify enrollees of any substantive changes
to the payment arrangements between the organization and health care
providers.  Prohibits an HMO from permitting the use or distribution of
prospective enrollee information which is untrue or misleading.  Makes a
conforming change. 

SECTION 7. Amends Article 20A.12, Insurance Code, to establish the
conditions by which every HMO is required to establish and maintain a
complaint resolution system including a process for the notice and appeal
of an oral or written complaint; appeal of an adverse determination; the
denial, reduction, or termination of a service; the way a service is
provided; or disenrollment decisions. Requires the complaint procedure to
include provisions to meet certain requirements regarding receipt and
investigation of complaints; total time for complaint resolution;
complaint response letters; complaint appeal process and panel; complaint
records; and complaint and appeal logs. Authorizes the commissioner to
examine such complaint system for compliance with this Act and require the
HMO to make corrections as deemed necessary by the commissioner.  Makes
conforming changes.   

SECTION 8. Amends Article 20A.01 et seq., Insurance Code, by adding
Section 12A, as follows: 

Sec. 12A.  FILING COMPLAINTS WITH THE TEXAS DEPARTMENT OF INSURANCE. Sets
forth the terms by which a person is authorized to report an alleged
violation of this Act to the Texas Department of Insurance, by which the
commissioner is required to investigate a complaint against an HMO, and by
which the commissioner is authorized to extend the time necessary to
complete the investigation in certain circumstances. 

 SECTION 9. Amends Articles 20A.13(a)-(c) and (f)-(h), Insurance Code, to
set forth the terms by which each HMO is required to deposit with the
comptroller, rather than the State Treasurer, cash, securities, or other
guarantees acceptable to the commissioner.  Makes conforming changes. 

SECTION 10. Amends Article 20A.14, Insurance Code, by adding Subsections
(i)-(l), to prohibit an HMO from prohibiting, attempting to prohibit, or
discouraging a physician or provider, as a condition of a contract, from
communicating information to a patient regarding the patient's health
care, or provisions or services of the health care plan.  Prohibits an HMO
from penalizing, terminating, or refusing to compensate a physician or
provider for communicating with a patient pursuant to this section.
Establishes the conditions by which an HMO is prohibited from engaging in
any retaliatory action against certain people or groups, and is prohibited
from using any financial incentive or payment to a physician or provider
as an inducement to limit medically necessary services.    

SECTION 11. Amends Article 20A.15, Insurance Code, as follows:

Sec. 15.  New heading:  REGULATION OF AGENTS.  Requires the commissioner
to collect in advance from HMO agent applicants a nonrefundable license
fee in a certain amount.  Requires all fees collected under this section
to be used by the commissioner to administer the provisions of this Act.
Requires all of such funds to be paid into the State Treasury to the
credit of the Texas Department of Insurance, rather than the State Board
of Insurance, operating fund.  Authorizes the commissioner, rather than
the State Board of Insurance, after notice and hearings, to promulgate
rules and regulations necessary to provide for the licensing of agents.
Makes conforming changes. 

SECTION 12. Amends Article 20A.15A, Insurance Code, to make conforming
changes. 

SECTION 13. Amends Article 20A.17, Insurance Code, to set forth the terms
by which the commissioner is authorized to make an examination concerning
the quality of health care services and of the affairs of any applicant
for a certificate of authority or any HMO.  Includes Article 1.04A,
Insurance Code, among the list of articles required to be construed to
apply to HMOs, except in certain circumstances.  Makes conforming changes.

SECTION 14. Amends Articles 20A.18(d) and (f), Insurance Code, to make
conforming changes. 

SECTION 15. Amends Article 20A.01 et seq., Insurance Code, by adding
Section 18A, as follows: 

Sec. 18A.  PHYSICIAN AND PROVIDER CONTRACTS.  Requires an HMO, on request,
to disclose to physicians and providers written application procedures and
qualification requirements for contracting with the HMO.  Sets forth the
terms by which each physician and provider who is denied a contract is
required to be provided written notice of the reasons. This subsection
does not prohibit an HMO plan from rejecting an application in certain
cases.  Sets forth the terms by which an HMO is required to terminate a
contract with a physician or provider.  Sets forth the terms by which each
contract must provide that advance notice be given to an enrollee of the
impending termination from the plan of a physician or provider who is
currently treating the enrollee; and that the termination of the contract
does not release the HMO from the obligation to reimburse the physician or
provider who is treating an enrollee of special circumstance.  Defines
"special circumstance."  Establishes the conditions by which a contract is
prohibited from prohibiting or attempting to prohibit a contracted
physician or provider from contracting with other HMOs, insurers, or other
health care benefit plans; and a contracted HMO from contracting with
other physicians or providers.  Sets forth other regulations regarding
physician and provider contracts. 

SECTION 16. Amends Article 20A.19, Insurance Code, to authorize the
commissioner, rather than the State Board of Insurance, by rules and
regulations, to fix uniform standards and criteria for early warning that
the continued operation of any HMO might be hazardous, and to fix
standards for evaluating the financial condition of any HMO.  Makes
conforming changes. 


 SECTION 17. Amends Article 20A.20(a), Insurance Code, to authorize the
commissioner, after notice and opportunity for hearing, to suspend or
revoke any certificate of authority issued to an HMO under this Act;
impose sanctions under Section 7, Article 1.10, Insurance Code; impose
administrative penalties under Article 1.10E, Insurance Code; or issue a
cease and desist order under Article 1.10A, Insurance Code, if the
commissioner finds that certain conditions exist, including that the HMO
has failed to carry out corrective action the commissioner considers
necessary to correct a failure to comply with certain rules and
provisions.  Makes conforming changes.   

SECTION 18. Amends Article 20A.22, Insurance Code, to authorize the
commissioner, rather than the State Board of Insurance, to promulgate
rules and regulations as necessary and proper to carry out the provisions
of this Act; to meet the requirements of federal law and regulations; to
prescribe authorized investments for HMOs in certain cases; to ensure that
enrollees have adequate access to health care services; and to establish
other regulations relating to patient care.  Makes conforming and
nonsubstantive changes. 

SECTION 19. Amends Article 20A.23, Insurance Code, to require the
commissioner, rather than the State Board of Insurance, to make rules and
regulations with respect to applications for review of a rule, ruling, or
decision of the Texas Department of Insurance or the commissioner, and
their consideration, as it considers to be advisable.  Makes conforming
changes. 

SECTION 20. Amends Article 20A.26(f)(4), Insurance Code, to provide that a
physician or provider who conducts utilization review during the ordinary
course of treatment of patients pursuant to a joint or delegated review
agreement(s) is prohibited from being required to obtain certification
under Section 3, Article 21.58A, Insurance Code. 

SECTION 21. Amends Article 20A.28, Insurance Code, to make conforming
changes. 

SECTION 22. Amends Article 20A.32, Insurance Code, to require every
organization subject to this chapter to pay to the commissioner a fee not
to exceed $18,000, rather than $15,000, as determined by the commissioner
for filing and review of its original application for a certificate of
authority; and the expenses of an examination under Section 17(a) of this
Act, regarding the affairs of any HMO,  incurred by the commissioner or
under the commissioner's authority, provided certain conditions are met.
Sets forth the terms by which the amount paid by an HMO in each taxable
year is required to be allowed as a credit.  Deletes existing provisions
regarding the payment of certain fees to the board.  Makes conforming
changes. 

SECTION 23. Amends Articles 20A.36(a)-(c), (e), and (g), Insurance Code,
to prohibit a public representative of the Health Maintenance Organization
Solvency Surveillance Committee from being a person required to register
with the Texas Ethics Commission, rather than the secretary of state,
under Chapter 305, Government Code.  Authorizes the commissioner, rather
than the State Board of Insurance, to adopt rules as necessary to
implement this Act in certain circumstances.  Makes conforming changes. 

SECTION 24. Amends Article 20A.01 et seq., Insurance Code, by adding
Section 37, as follows: 

Sec. 37.  HEALTH MAINTENANCE ORGANIZATION QUALITY ASSURANCE.  Sets forth
the terms by which an HMO is required to establish procedures which assure
availability, accessibility, quality, and continuity of health care.
Establishes the conditions by which an HMO is required to have an internal
quality assurance program to monitor and evaluate its health care
services.  Authorizes the commissioner, by rule, to establish minimum
standards and requirements for  these programs.  Sets forth the terms by
which an HMO is required to record formal proceedings and maintain
documentation of program activities; establish and maintain a physician
review panel; ensure the use and maintenance of a patient record system;
and establish a mechanism for the periodic reporting of program
activities.  Requires enrollees' clinical records to be confidential, and
available to the commissioner for examination and review to determine
compliance.  Requires an HMO to establish a mechanism for periodic
reporting of program activities to the governing body, providers, and
staff.   

 SECTION 25. Effective date:  September 1, 1997.

SECTION 26. Emergency clause.