By Smithee                                       H.B. No. 893

      75R2440 DLF-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to providing fairness and choice to patients and providers

 1-3     under managed care health benefit plans.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Chapter 21, Insurance Code, is amended by adding

 1-6     Subchapter G to read as follows:

 1-7                    SUBCHAPTER G.  PATIENT PROTECTION ACT

 1-8           Art. 21.101.  SHORT TITLE.  This subchapter may be cited as

 1-9     the Patient Protection Act.

1-10           Art. 21.102.  DEFINITIONS.  In this subchapter:

1-11                 (1)  "Commissioner" means the Commissioner of

1-12     Insurance.

1-13                 (2)  "Dentist" means a person licensed to practice

1-14     dentistry by the State Board of Dental Examiners.

1-15                 (3)  "Emergency care" and "emergency medical condition"

1-16     have the meanings assigned by Section 2, Texas Health Maintenance

1-17     Organization Act (Article 20A.02, Vernon's Texas Insurance Code).

1-18                 (4)  "Managed care entity" means:

1-19                       (A)  an insurance company authorized to do

1-20     business in this state only to the extent that the insurance

1-21     company is engaged in providing a managed care plan;

1-22                       (B)  a group hospital service corporation

1-23     licensed under Chapter 20 of this code;

1-24                       (C)  an approved nonprofit health corporation

 2-1     that holds a certificate of authority under Article 21.52F of this

 2-2     code; or

 2-3                       (D)  a health maintenance organization licensed

 2-4     under the Texas Health Maintenance Organization Act (Chapter 20A,

 2-5     Vernon's Texas Insurance Code).

 2-6                 (5)(A)  "Managed care plan" means a plan operated by a

 2-7     managed care entity that provides for the financing and delivery of

 2-8     health care or dental services to persons enrolled in the plan

 2-9     through:

2-10                             (i)  arrangements with selected providers

2-11     to furnish health care services;

2-12                             (ii)  explicit standards for the selection

2-13     of participating providers;

2-14                             (iii)  organizational arrangements for

2-15     ongoing quality assurance, utilization review, and dispute

2-16     resolution; or

2-17                             (iv)  differential coverage or payments or

2-18     financial incentives for a person enrolled in the plan to use the

2-19     participating providers and procedures provided by the plan.

2-20                       (B)  The term "managed care plan" does not

2-21     include accident-only, specified disease, individual hospital

2-22     indemnity, credit, dental-only, vision-only, Medicare supplement or

2-23     Medicare Select, long-term care, disability income, CHAMPUS

2-24     supplement, or workers' compensation insurance, insurance coverage

2-25     issued as a supplement to liability insurance or other similar

2-26     insurance, or automobile medical payment insurance.

2-27                 (6)  "Physician" means a person licensed as a physician

 3-1     by the Texas State Board of Medical Examiners.

 3-2                 (7)  "Prospective enrollee" means an individual

 3-3     applying for enrollment in a managed care plan or eligible for

 3-4     enrollment in a group managed care plan.

 3-5                 (8)  "Provider" means a physician, dentist, podiatrist,

 3-6     pharmacist, optometrist, psychologist, clinical social worker,

 3-7     advanced nurse practitioner, registered optician, licensed

 3-8     professional counselor, physical therapist, or chiropractor.

 3-9           Art. 21.103.  STANDARDS.  The commissioner by rule may adopt

3-10     standards to ensure compliance with this subchapter by managed care

3-11     entities that conduct business in this state.  The commissioner may

3-12     appoint an advisory committee to assist in the implementation of

3-13     this subchapter.

3-14           Art. 21.104.  ENROLLEE INFORMATION.  (a)  A managed care

3-15     entity shall provide a prospective enrollee a written description

3-16     of the terms and conditions of the managed care plan.  The written

3-17     plan description must be in a readable and understandable format

3-18     and must include:

3-19                 (1)  coverage provisions;

3-20                 (2)  benefits, including generic and brand name

3-21     prescription drug coverage;

3-22                 (3)  any exclusions by category of service, by

3-23     provider, and, if applicable, by specific service or types of

3-24     drugs;

3-25                 (4)  any required prior authorization for benefits,

3-26     including:

3-27                       (A)  procedures for and limitations or

 4-1     restrictions on referrals to providers other than primary care

 4-2     physicians or dentists; or

 4-3                       (B)  other review requirements, including

 4-4     preauthorization review, concurrent review, postservice review, and

 4-5     postpayment review;

 4-6                 (5)  an explanation of enrollee financial

 4-7     responsibility for payment for coinsurance or other noncovered or

 4-8     out-of-plan services;

 4-9                 (6)  a disclosure to prospective enrollees that

4-10     includes the following language:

4-11                        "YOUR RIGHTS UNDER TEXAS LAW:

4-12           "You have the right to information about the plan, including

4-13     how the plan operates, what general types of financial arrangements

4-14     exist between providers and the plan, names and locations of

4-15     providers, the numbers of enrollees and providers in the plan, the

4-16     percentage of premiums allocated for medical care, administrative

4-17     costs, and profit, and an explanation of the benefits to which

4-18     participants are entitled under the terms of the plan."; and

4-19                 (7)  a phone number and address for the prospective

4-20     enrollee to obtain additional information concerning the items

4-21     described by the disclosure required by this subsection.

4-22           (b)  The managed care entity may provide the information

4-23     under Subsection (a)(6) of this article regarding the percentage of

4-24     premiums allocated for medical care, administrative costs, and

4-25     profit by providing the information included in the entity's annual

4-26     financial statement most recently submitted to the department.

4-27           (c)  The managed care entity shall demonstrate that each

 5-1     enrollee has adequate access through the entity's provider network

 5-2     to all items and services contained in the package of benefits for

 5-3     which coverage is provided, including access to at least one cancer

 5-4     care provider certified as a "Comprehensive Cancer Center" by the

 5-5     National Cancer Institute.  The access must be adequate considering

 5-6     the diverse needs of enrollees.

 5-7           (d)  Subsection (c) of this article does not require  a

 5-8     comprehensive cancer center to be the exclusive provider of cancer

 5-9     care services for a managed care plan.

5-10           (e)  Subsection (c) of this article may not be interpreted to

5-11     circumvent the managed care plan's normal referral and

5-12     authorization processes.

5-13           (f)  If the managed care plan uses a capitation method of

5-14     compensation, the plan must establish and follow procedures that

5-15     ensure that:

5-16                 (1)  each plan application form includes a space in

5-17     which each enrollee selects a primary care physician or dentist;

5-18                 (2)  each enrollee who fails to select a primary care

5-19     physician or dentist and is assigned a physician or dentist is

5-20     notified of the name and location of that physician or dentist; and

5-21                 (3)  a primary care physician or dentist to whom an

5-22     enrollee is assigned is physically located within a reasonable

5-23     travel distance, as established by rules adopted by the

5-24     commissioner, from the residence or place of employment of the

5-25     enrollee.

5-26           Art. 21.105.  NETWORK CONFIGURATION.  (a)  The managed care

5-27     entity shall provide to the commissioner, for information, an

 6-1     explanation of the targeted physician, dentist, and, as

 6-2     appropriate, other provider network configuration, including

 6-3     geographic distribution of physicians and dentists by specialty,

 6-4     and other providers, as appropriate.  The information required by

 6-5     this subsection shall be updated at least annually and:

 6-6                 (1)  on establishment of a new managed care plan;

 6-7                 (2)  on expansion of a service area; or

 6-8                 (3)  when the network configuration targets are

 6-9     significantly modified.

6-10           (b)  This subchapter does not require a particular ratio for

6-11     any type of provider.

6-12           (c)  The department shall make the information provided to

6-13     the commissioner under Subsection (a) of this article available to

6-14     the public on request.  The department may charge a reasonable fee

6-15     for providing the information.

6-16           Art. 21.106.  HOSPITAL PARTICIPATION.  (a)  In the

6-17     development of the plan's criteria for hospital participation, if a

6-18     hospital is certified by the Medicare program under Title XVIII,

6-19     Social Security Act, as amended (42 U.S.C. Section 1395 et seq.),

6-20     or accredited by the Joint Commission on Accreditation of Health

6-21     Care Organizations, the managed care plan shall accept that

6-22     certification or accreditation.

6-23           (b)  This article does not prohibit a managed care plan from

6-24     establishing additional criteria for hospital participation.

6-25           Art. 21.107.  PROHIBITED INCENTIVES.  (a)  A managed care

6-26     entity may not pay a physician or provider, or use another

6-27     financial incentive, to directly or indirectly induce the physician

 7-1     or provider to limit medically necessary services.

 7-2           (b)  The commissioner may adopt rules to implement this

 7-3     article.

 7-4           Art. 21.108.  PARTICIPATING PROVIDERS.  (a)  Each managed

 7-5     care plan shall establish a mechanism under which:

 7-6                 (1)  physicians or dentists participating in the plan

 7-7     provide consultation and advice on the plan's medical or dental

 7-8     policy, including coverage of new technology and procedures, the

 7-9     development and use of a prescription drug formulary, utilization

7-10     review criteria and procedures, quality and credentialing criteria,

7-11     and medical or dental management procedures; and

7-12                 (2)  other participating providers may comment on the

7-13     plan's policies affecting their services.

7-14           (b)  Each managed care plan on request shall make available

7-15     and disclose to providers the application process and qualification

7-16     requirements for participation in the plan.  The plan must give a

7-17     provider who is not selected on initial application each reason the

7-18     initial application was denied.

7-19           (c)  Each physician or dentist under consideration for

7-20     inclusion in a managed care plan shall be reviewed by a

7-21     credentialing committee composed primarily of network participating

7-22     physicians or dentists selected by the medical director of the

7-23     managed care entity.  If there are no credentialed physicians or

7-24     dentists in a newly created plan, the committee shall be primarily

7-25     composed of physicians or dentists practicing in the same or

7-26     similar settings.  Other providers may be credentialed, if

7-27     appropriate, as determined by the plan.  If a provider, other than

 8-1     a physician or dentist, is credentialed by the plan, the

 8-2     credentialing committee shall include providers who hold the same

 8-3     license.

 8-4           (d)  Credentialing of providers shall be based on identified

 8-5     standards developed after consultation with providers credentialed

 8-6     in the plan.  If there are no credentialed providers in a newly

 8-7     created plan, the plan shall develop credentialing standards after

 8-8     consulting with area providers.  The managed care plan shall make

 8-9     the credentialing standards available to applicants.

8-10           (e)  If economic considerations are part of a managed care

8-11     plan's decision to select a provider or terminate a contract with a

8-12     provider, the plan shall use identified criteria.  The criteria

8-13     must be available to applicants and participating providers.  If

8-14     the plan uses an economic profile of a provider, the plan must

8-15     adjust the profile to recognize the characteristics of a provider's

8-16     practice that may account for variations from expected costs.

8-17           (f)  A managed care plan that conducts or uses economic

8-18     profiling of providers within the plan shall, on a periodic basis,

8-19     make the profile available to the provider profiled.

8-20           (g)  Unless specifically required by this subchapter, a

8-21     managed care plan is not required to disclose proprietary

8-22     information regarding marketplace strategies.

8-23           (h)  A managed care plan may not exclude a provider solely

8-24     because of the anticipated characteristics of the patients of that

8-25     provider.

8-26           (i)  Before terminating a contract with a provider, the

8-27     managed care plan shall provide a written explanation of the

 9-1     reasons for termination, an opportunity for discussion, and an

 9-2     opportunity to enter into and complete a corrective action plan, if

 9-3     appropriate, as determined by the managed care plan.  The provider

 9-4     is entitled, on request and before the effective date of the

 9-5     termination, to a review of the plan's proposed action by a plan

 9-6     advisory panel, except in cases:

 9-7                 (1)  in which there is imminent harm to patient health;

 9-8                 (2)  in which an action by a state medical, dental, or

 9-9     other provider licensing board or other government agency

9-10     effectively impairs the provider's ability to practice medicine,

9-11     dentistry, or another health care profession; or

9-12                 (3)  of fraud or malfeasance.

9-13           (j)  For a physician or a dentist, the plan advisory panel

9-14     required under Subsection (i) of this article must be primarily

9-15     composed of the physician's or dentist's peers.  If the review

9-16     involves another type of provider, the plan advisory panel must

9-17     include providers with the same license.  The review may include a

9-18     review of the appropriateness and requirements of a corrective

9-19     action plan.  The decision of the advisory panel must be considered

9-20     but is not binding on the managed care plan.

9-21           (k)  If an action that is under consideration by a managed

9-22     care entity is of a type that must be reported to the National

9-23     Practitioner Data Bank or a state medical or dental board under

9-24     federal or state law, the physician's or dentist's procedural

9-25     rights must meet the standards set forth in the federal Health Care

9-26     Quality Improvement Act of 1986 (42 U.S.C. Section 11101 et seq.).

9-27     For purposes of this subsection, a managed care entity shall be

 10-1    considered a health care entity as defined by Section 1.03, Medical

 10-2    Practice Act (Article 4495b, Vernon's Texas Civil Statutes).

 10-3          (l)  A communication relating to the subject matter provided

 10-4    for under Subsections (a), (b), and (i) of this article may not be

 10-5    the basis for a cause of action for libel or slander except for

 10-6    disclosures or communications with parties other than the managed

 10-7    care plan or provider.

 10-8          (m)  The managed care plan shall establish reasonable

 10-9    procedures for assuring a transition of enrollees of the plan to

10-10    new providers.

10-11          (n)  If a contract with a provider is terminated by a managed

10-12    care plan, the plan shall reimburse the provider the reasonable

10-13    cost for copies of medical or dental records that are furnished to

10-14    another provider at the patient's request.  If a provider

10-15    terminates the contract with the plan, the provider shall bear the

10-16    reasonable cost of providing copies of medical or dental records

10-17    that are furnished to another provider at the patient's request.

10-18          (o)  This subchapter does not prohibit a managed care plan

10-19    from rejecting an application from a provider based on the

10-20    determination that the plan has sufficient qualified providers.

10-21          (p)  A managed care plan may charge to a provider, other than

10-22    a physician or dentist:

10-23                (1)  a reasonable application fee to cover the cost of

10-24    processing applications and informing the provider of selection or

10-25    nonselection under the plan;

10-26                (2)  a reasonable credentialing fee to cover the cost

10-27    of the credentialing process; and

 11-1                (3)  a reasonable fee for providing to a provider a

 11-2    copy of credentialing standards, identified criteria for selection,

 11-3    and economic profiles requested by the provider.

 11-4          (q)  For purposes of this article, "managed care plan" does

 11-5    not include:

 11-6                (1)  a group model health maintenance organization that

 11-7    is a state-certified health maintenance organization that provides

 11-8    the majority of its professional services through a single group

 11-9    medical practice that educates medical students or resident

11-10    physicians through a contract with the medical school component of

11-11    a Texas state-supported college or university accredited by the

11-12    Accrediting Council on Graduate Medical Education or the American

11-13    Osteopathic Association; or

11-14                (2)  a state-certified health maintenance organization

11-15    that:

11-16                      (A)  implements all credentialing, quality

11-17    assurance, utilization review, and peer review policies through a

11-18    physician network board of directors composed exclusively of

11-19    persons actively engaged in the practice of medicine as defined by

11-20    the Texas State Board of Medical Examiners; and

11-21                      (B)  educates medical students or resident

11-22    physicians through a contract with the medical school component of

11-23    a Texas state-supported college or university accredited by the

11-24    Accrediting Council on Graduate Medical Education or the American

11-25    Osteopathic Association.

11-26          (r)  Subsections (a), (b), (d), (e), (f), (h), (i), (n), and

11-27    (o) of this article apply to a hospital, hospice, or home health

 12-1    agency as if it were a provider.

 12-2          Art. 21.109.  EMERGENCY CARE.  A managed care plan shall:

 12-3                (1)  cover emergency care provided to covered

 12-4    individuals, without regard to whether the provider furnishing the

 12-5    care has a contractual or other arrangement with the entity to

 12-6    provide items or services to enrollees, including the treatment and

 12-7    stabilization of an emergency medical condition;

 12-8                (2)  provide that the prior authorization requirement

 12-9    for medically necessary services provided or originating in a

12-10    hospital emergency department following treatment or stabilization

12-11    of an emergency medical condition are approved unless denied in the

12-12    time appropriate to the circumstances relating to the delivery of

12-13    the services and the condition of the patient, as determined by the

12-14    treating provider and communicated to the plan; and

12-15                (3)  cover any medical screening examination to

12-16    determine whether an emergency medical condition exists or other

12-17    evaluation required by state or federal law to be provided in the

12-18    emergency department of a hospital.

12-19          Art. 21.110.  PRIOR AUTHORIZATION; CONSENT.  A plan for which

12-20    prior authorization is a condition to coverage of a service must

12-21    ensure that enrollees are required to sign medical and dental

12-22    information release consent forms on enrollment.

12-23          Art. 21.111.  UTILIZATION REVIEW.  A managed care plan is

12-24    subject to and shall meet the requirements of Article 21.58A of

12-25    this code.

12-26          Art. 21.112.  POINT-OF-SERVICE OFFERING.  (a)  If a health

12-27    maintenance organization offers a point-of-service plan in its

 13-1    service area and is the only entity providing services under a

 13-2    group health benefit plan, it must offer to all eligible enrollees

 13-3    the opportunity to obtain coverage for out-of-network services

 13-4    through the point-of-service plan at the time of enrollment and at

 13-5    least annually.

 13-6          (b)  The premium for the point-of-service plan must be based

 13-7    on the actuarial value of that coverage.

 13-8          (c)  Any additional costs for the point-of-service plan are

 13-9    the responsibility of the enrollee, and the holder of the group

13-10    contract may impose a reasonable administrative cost for providing

13-11    the point-of-service option.

13-12          (d)  If five percent or less of the group's eligible

13-13    enrollees elect to purchase the point-of-service option, the plan

13-14    is not required to offer the point-of-service option during

13-15    subsequent open enrollment periods.

13-16          (e)  This article does not apply to a small employer as

13-17    defined in Article 26.02 of this code.

13-18          (f)  In this article, "point-of-service plan" means a plan

13-19    provided through a contractual arrangement under which indemnity

13-20    benefits for the cost of health care services, other than emergency

13-21    care, are provided by an insurer or group hospital service

13-22    corporation in conjunction with corresponding benefits arranged or

13-23    provided by a health maintenance organization, including a single

13-24    service health maintenance organization.  An individual may choose

13-25    to obtain benefits or services under either the indemnity plan or

13-26    the health maintenance organization plan in accordance with

13-27    specific provisions of a point-of-service contract.

 14-1          Art. 21.113.  PRIVATE CAUSE OF ACTION.  This subchapter and

 14-2    rules adopted under this subchapter do not:

 14-3                (1)  provide a private cause of action for damages or

 14-4    create a standard of care, obligation, or duty that provides a

 14-5    basis for a private cause of action for damages; or

 14-6                (2)  abrogate a statutory or common law cause of

 14-7    action, administrative remedy, or defense otherwise available and

 14-8    existing before June 1, 1998.

 14-9          Art. 21.114.  ANNUAL PERFORMANCE REPORT.  (a)  The office of

14-10    public insurance counsel shall issue an annual report to consumers

14-11    on the performance of managed care entities.

14-12          (b)  The office of public insurance counsel shall have access

14-13    to:

14-14                (1)  information provided under Article 21.105 of this

14-15    code;

14-16                (2)  information contained in complaints relating to

14-17    managed care entities made to the department or to the Texas

14-18    Department of Health, provided that the office shall maintain as

14-19    confidential any information in the complaint that relates to a

14-20    patient or that is made confidential by another law; and

14-21                (3)  any statistical information relating to

14-22    utilization, quality assurance, and complaints that a health

14-23    maintenance organization is required to maintain under rules

14-24    adopted by the commissioner or the Texas Department of Health.

14-25          (c)  The office of public insurance counsel shall provide a

14-26    copy of the report to a person on request on payment of a

14-27    reasonable fee.  The public insurance counsel shall set the fee in

 15-1    the amount necessary to defray the cost of producing the report.

 15-2          Art. 21.115.  RETALIATION PROHIBITED.  A managed care plan

 15-3    may not take any retaliatory action, including cancellation or

 15-4    refusal to renew a policy, against the holder of a group policy or

 15-5    contract or an enrollee solely because the policy or contract

 15-6    holder or an enrollee has filed a complaint with the plan or

 15-7    appealed a decision of the plan.

 15-8          SECTION 2.  (a)  Section 2, Texas Health Maintenance

 15-9    Organization Act (Article 20A.02, Vernon's Texas Insurance Code),

15-10    is amended by amending Subsection (t) and adding Subsections (v)

15-11    and (w) to read as follows:

15-12          (t)  "Emergency care" means health care services provided in

15-13    a hospital emergency facility to evaluate and treat an emergency

15-14    medical condition [bona fide emergency services provided after the

15-15    sudden onset of a medical condition manifesting itself by acute

15-16    symptoms of sufficient severity, including severe pain, such that

15-17    the absence of immediate medical attention could reasonably be

15-18    expected to result in:]

15-19                [(1)  placing the patient's health in serious jeopardy;]

15-20                [(2)  serious impairment to bodily functions; or]

15-21                [(3)  serious dysfunction of any bodily organ or part].

15-22          (v)  "Emergency medical condition" means a medical condition,

15-23    sickness, or injury of recent onset and severity, including severe

15-24    pain, that would lead a prudent layperson possessing an average

15-25    knowledge of medicine and health to believe that failure to get

15-26    immediate medical care could  result in:

15-27                (1)  placing the patient's health in serious jeopardy;

 16-1                (2)  serious impairment to bodily functions;

 16-2                (3)  serious dysfunction of any bodily organ or part;

 16-3                (4)  serious disfigurement; or

 16-4                (5)  in the case of a pregnant woman, serious jeopardy

 16-5    to the health of the fetus.

 16-6          (w)  "Network physician or provider" means a physician or

 16-7    provider who is participating in a health maintenance organization

 16-8    delivery network.

 16-9          SECTION 3.  Section 6(a), Texas Health Maintenance

16-10    Organization Act (Article 20A.06, Vernon's Texas Insurance Code),

16-11    is amended to read as follows:

16-12          (a)  The powers of a health maintenance organization include,

16-13    but are not limited to, the following:

16-14                (1)  the purchase, lease, construction, renovation,

16-15    operation, or maintenance of hospitals, medical facilities, or

16-16    both, and ancillary equipment and such property as may reasonably

16-17    be required for its principal office or for such other purposes as

16-18    may be necessary in the transaction of the business of the health

16-19    maintenance organization;

16-20                (2)  the making of loans to a medical group, under an

16-21    independent contract with it in furtherance of its program, or

16-22    corporations under its control, for the purpose of acquiring or

16-23    constructing medical facilities and hospitals, or in the

16-24    furtherance of a program providing health care services to

16-25    enrollees;

16-26                (3)  the furnishing of or arranging for medical care

16-27    services only through other health maintenance organizations or

 17-1    physicians or groups of physicians who have independent contracts

 17-2    with the health maintenance organizations;  the furnishing of or

 17-3    arranging for the delivery of health care services only through

 17-4    other health maintenance organizations or providers or groups of

 17-5    providers who are under contract with or employed by the health

 17-6    maintenance organization or through other health maintenance

 17-7    organizations or physicians or providers who have contracted for

 17-8    health care services with those other health maintenance

 17-9    organizations or physicians or providers, except for the furnishing

17-10    of or authorization for emergency care [services], services by

17-11    referral, and services to be provided outside of the service area

17-12    as approved by the commissioner;  provided, however, that a health

17-13    maintenance organization is not authorized to employ or contract

17-14    with other health maintenance organizations or physicians or

17-15    providers in any manner which is prohibited by any licensing law of

17-16    this state under which such health maintenance organizations or

17-17    physicians or providers are licensed;  however, if a hospital,

17-18    facility, agency, or supplier is certified by the Medicare program,

17-19    Title XVIII of the Social Security Act (42 U.S.C. Section 1395 et

17-20    seq.), or accredited by the Joint Commission on Accreditation of

17-21    Healthcare Organizations or another national accrediting body, the

17-22    health maintenance organization shall be required to accept such

17-23    certification or accreditation;

17-24                (4)  the contracting with any person for the

17-25    performance on its behalf of certain functions such as marketing,

17-26    enrollment, and administration;

17-27                (5)  the contracting with an insurance company licensed

 18-1    in this state, or with a group hospital service corporation

 18-2    authorized to do business in the state, for the provision of

 18-3    insurance, reinsurance, indemnity, or reimbursement against the

 18-4    cost of health care and medical care services provided by the

 18-5    health maintenance organization;

 18-6                (6)  the offering of:

 18-7                      (A)  indemnity benefits covering out-of-area

 18-8    emergency care [services]; and

 18-9                      (B)  indemnity benefits in addition to those

18-10    relating to out-of-area and emergency care [services], provided

18-11    through insurers or group hospital service corporations;

18-12                (7)  receiving and accepting from government or private

18-13    agencies payments covering all or part of the cost of the services

18-14    provided or arranged for by the organization; and

18-15                (8)  all powers given to corporations (including

18-16    professional corporations and associations), partnerships, and

18-17    associations pursuant to their organizational documents which are

18-18    not in conflict with provisions of this Act, or other applicable

18-19    law.

18-20          SECTION 4.  The Texas Health Maintenance Organization Act

18-21    (Chapter 20A, Vernon's Texas Insurance Code) is amended by adding

18-22    Section 9A to read as follows:

18-23          Sec. 9A.  REQUIRED CONTRACT PROVISIONS; BENEFITS FOR

18-24    OUT-OF-NETWORK SERVICES.  (a)  A health maintenance organization,

18-25    on the request of a network physician or provider, shall:

18-26                (1)  authorize referral of an enrollee to a physician

18-27    or provider who is not a network physician or provider for

 19-1    medically necessary health care services:

 19-2                            (A)  for which benefits are provided under

 19-3    the health care plan; and

 19-4                            (B)  that are not available from a network

 19-5    physician or provider; and

 19-6                (2)  fully reimburse the physician or provider to whom

 19-7    the referral is made for the covered services at the usual and

 19-8    customary rate or at a rate agreed on by the health maintenance

 19-9    organization and the physician or provider.

19-10          (b)  A health maintenance organization must authorize the

19-11    referral under Subsection (a)(1) of this section within a

19-12    reasonable period after receipt of the request and may not deny a

19-13    request under that subsection unless the health maintenance

19-14    organization provides for a review of the request.  The request

19-15    must be reviewed by a physician or provider in the same or a

19-16    similar speciality as the physician or provider to whom the

19-17    referral is requested.

19-18          (c)  Each group or individual contract issued by a health

19-19    maintenance organization must include a provision implementing the

19-20    requirements of this section.

19-21          SECTION 5.  (a)  Section 13(i), Texas Health Maintenance

19-22    Organization Act (Article 20A.13, Vernon's Texas Insurance Code),

19-23    is amended to read as follows:

19-24          (i)  Each health maintenance organization offering basic

19-25    health care services shall maintain a minimum surplus of not less

19-26    than $1.5 million [$500,000], net of accrued uncovered liabilities.

19-27    Each health maintenance organization offering only a single care

 20-1    service shall maintain a minimum surplus of not less than $500,000

 20-2    [$125,000], net of accrued uncovered liabilities.  The minimum

 20-3    surplus shall consist only of cash, bonds of the United States,

 20-4    bonds of this state, or a combination of these.  If a health

 20-5    maintenance organization fails to comply with the surplus

 20-6    requirement of this subsection [or Subsection (j) of this section],

 20-7    the commissioner is authorized to take appropriate action to assure

 20-8    that the continued operation of the health maintenance organization

 20-9    will not be hazardous to its enrollees.

20-10          (b)  Sections 13(j) and (k), Texas Health Maintenance

20-11    Organization Act (Article 20A.13, Vernon's Texas Insurance Code),

20-12    are repealed.

20-13          SECTION 6.  Section 4, Article 21.21, Insurance Code, is

20-14    amended to read as follows:

20-15          Sec. 4.  UNFAIR METHODS OF COMPETITION AND UNFAIR OR

20-16    DECEPTIVE ACTS OR PRACTICES DEFINED.  The following are hereby

20-17    defined as unfair methods of competition and unfair and deceptive

20-18    acts or practices in the business of insurance:

20-19                (1)  Misrepresentations and False Advertising of Policy

20-20    Contracts.  Making, issuing, circulating, or causing to be made,

20-21    issued or circulated, any estimate, illustration, circular or

20-22    statement misrepresenting the terms of any policy issued or to be

20-23    issued or the benefits or advantages promised thereby or the

20-24    dividends or share of the surplus to be received thereon, or making

20-25    any false or misleading statements as to the dividends or share of

20-26    surplus previously paid on similar policies, or making any

20-27    misleading representation or any misrepresentation as to the

 21-1    financial condition of any insurer, or as to the legal reserve

 21-2    system upon which any life insurer operates, or using any name or

 21-3    title of any policy or class of policies misrepresenting the true

 21-4    nature thereof, or making any misrepresentation to any policyholder

 21-5    insured in any company for the purpose of inducing or tending to

 21-6    induce such policyholder to lapse, forfeit, or surrender his

 21-7    insurance;

 21-8                (2)  False Information and Advertising Generally.

 21-9    Making, publishing, disseminating, circulating or placing before

21-10    the public, or causing, directly or indirectly, to be made,

21-11    published, disseminated, circulated, or placed before the public,

21-12    in a newspaper, magazine or other publication, or in the form of a

21-13    notice, circular, pamphlet, letter or poster, or over any radio or

21-14    television station, or in any other way, an advertisement,

21-15    announcement or statement containing any assertion, representation

21-16    or statement with respect to the business of insurance or with

21-17    respect to any person in the conduct of his insurance business,

21-18    which is untrue, deceptive or misleading;

21-19                (3)  Defamation.  Making, publishing, disseminating, or

21-20    circulating, directly or indirectly, or aiding, abetting or

21-21    encouraging the making, publishing, disseminating or circulating of

21-22    any oral or written statement or any pamphlet, circular, article or

21-23    literature which is false, or maliciously critical of or derogatory

21-24    to the financial condition of any insurer, and which is calculated

21-25    to injure any person engaged in the business of insurance;

21-26                (4)  Boycott, Coercion and Intimidation.  Entering into

21-27    any agreement to commit, or by any concerted action committing, any

 22-1    act of boycott, coercion or intimidation resulting in or tending to

 22-2    result in unreasonable restraint of, or monopoly in, the business

 22-3    of insurance;

 22-4                (5)  False Financial Statements.  (a)  Filing with any

 22-5    supervisory or other public official, or making, publishing,

 22-6    disseminating, circulating or delivering to any person, or placing

 22-7    before the public, or causing directly or indirectly, to be made,

 22-8    published, disseminated, circulated, delivered to any person, or

 22-9    placed before the public, any false statement of financial

22-10    condition of an insurer with intent to deceive;

22-11                      (b)  Making any false entry in any book, report

22-12    or statement of any insurer with intent to deceive any agent or

22-13    examiner lawfully appointed to examine into its condition or into

22-14    any of its affairs, or any public official to whom such insurer is

22-15    required by law to report, or who has authority by law to examine

22-16    into its condition or into any of its affairs, or, with like

22-17    intent, wilfully omitting to make a true entry of any material fact

22-18    pertaining to the business of such insurer in any book, report or

22-19    statement of such insurer;

22-20                (6)  Stock Operations and Advisory Board Contracts.

22-21    Issuing or delivering or permitting agents, officers or employees

22-22    to issue or deliver, company stock or other capital stock, or

22-23    benefit certificates or shares in any corporation, or securities or

22-24    any special or advisory board contracts or other contracts of any

22-25    kind promising returns and profits as an inducement to insurance.

22-26    Provided, however, that nothing in this subsection shall be

22-27    construed as prohibiting the issuing or delivery of participating

 23-1    insurance policies otherwise authorized by law.

 23-2                (7)  Unfair Discrimination.  [(a)]  Making or

 23-3    permitting any unfair discrimination between individuals of the

 23-4    same class and equal expectation of life in the rates charged for

 23-5    any contract of life insurance or of life annuity or in the

 23-6    dividends or other benefits payable thereon, or in any other of the

 23-7    terms and conditions of such contract.

 23-8                (8)  Rebates.  (a)  Except as otherwise expressly

 23-9    provided by law, knowingly permitting or offering to make or making

23-10    any contract of life insurance, life annuity or accident and health

23-11    insurance, or agreement as to such contract other than as plainly

23-12    expressed in the contract issued thereon, or paying or allowing, or

23-13    giving or offering to pay, allow, or give, directly or indirectly,

23-14    as inducement to such insurance, or annuity, any rebate of premiums

23-15    payable on the contract, or any special favor or advantage in the

23-16    dividends or other benefits thereon, or any valuable consideration

23-17    or inducement whatever not specified in the contract;  or giving,

23-18    or selling, or purchasing or offering to give, sell, or purchase as

23-19    inducement to such insurance or annuity or in connection therewith,

23-20    any stocks, bonds, or other securities of any insurance company or

23-21    other corporation, association, or partnership, or any dividends or

23-22    profits accrued thereon, or anything of value whatsoever not

23-23    specified in the contract;

23-24                      (b)  Nothing in clause (7) [7] or paragraph (a)

23-25    of clause (8) [8] of this subsection shall be construed as

23-26    including within the definition of discrimination or rebates any of

23-27    the following practices:

 24-1                            (i)  in the case of any contract of life

 24-2    insurance or life annuity, paying bonuses to policyholders or

 24-3    otherwise abating their premiums in whole or in part out of surplus

 24-4    accumulated from non-participating insurance, provided that any

 24-5    such bonuses or abatement of premiums shall be fair and equitable

 24-6    to policyholders and for the best interests of the company and its

 24-7    policyholders;

 24-8                            (ii)  in the case of life insurance

 24-9    policies issued on the industrial debit plan, making allowance to

24-10    policyholders who have continuously for a specified period made

24-11    premium payments directly to an office of the insurer in an amount

24-12    which fairly represents the saving in collection expenses;

24-13                            (iii)  readjustment of the rate of premium

24-14    for a group insurance policy based on the loss or expense

24-15    experience thereunder, at the end of the first or any subsequent

24-16    policy year of insurance thereunder, which may be made retroactive

24-17    only for such policy year.

24-18                (9)  Deceptive Name, Word, Symbol, Device, or Slogan.

24-19    Using, displaying, publishing, circulating, distributing, or

24-20    causing to be used, displayed, published, circulated, or

24-21    distributed in any letter, pamphlet, circular, contract, policy,

24-22    evidence of coverage, article, poster, or other document,

24-23    literature, or public media of:

24-24                      (a)  a name as the corporate or business name of

24-25    a person or entity engaged in an insurance or insurance related

24-26    business in this state that is the same as, or deceptively similar

24-27    to, the name adopted and used by an insurance entity, health

 25-1    maintenance organization, third party administrator, or group

 25-2    hospital service company authorized to do business under the laws

 25-3    of this state;  or

 25-4                      (b)  a word, symbol, device, slogan, or any

 25-5    combination of these items, whether registered or not registered,

 25-6    that is the same as or deceptively similar to one adopted and used

 25-7    by an insurance entity, health maintenance organization, third

 25-8    party administrator, or group hospital service company to

 25-9    distinguish such entities, products, or service from other

25-10    entities, and includes the title, designation, character names, and

25-11    distinctive features of broadcast or other advertising.

25-12                Where two persons or entities are using a name, word,

25-13    symbol, device, slogan, or any combination of these items that are

25-14    the same or deceptively similar and are likely to cause confusion

25-15    or a mistake, the user who can demonstrate the first continuous

25-16    actual use of such name, word, symbol, device, slogan, or

25-17    combination of these items shall not have committed an unfair

25-18    method of competition or deceptive act or practice.

25-19                (10)  Unfair Settlement Practices.  (a) Engaging in any

25-20    of the following unfair settlement practices with respect to a

25-21    claim by an insured or beneficiary:

25-22                            (i)  misrepresenting to a claimant a

25-23    material fact or policy provision relating to coverage at issue;

25-24                            (ii)  failing to attempt in good faith to

25-25    effectuate a prompt, fair, and equitable settlement of a claim with

25-26    respect to which the insurer's liability has become reasonably

25-27    clear;

 26-1                            (iii)  failing to attempt, in good faith,

 26-2    to effectuate a prompt, fair, and equitable settlement under one

 26-3    portion of a policy of a claim with respect to which the insurer's

 26-4    liability has become reasonably clear in order to influence the

 26-5    claimant to settle an additional claim under another portion of the

 26-6    coverage, provided that this prohibition does not apply if payment

 26-7    under one portion of the coverage constitutes evidence of liability

 26-8    under another portion of the policy;

 26-9                            (iv)  failing to provide promptly to a

26-10    policyholder a reasonable explanation of the basis in the policy,

26-11    in relation to the facts or applicable law, for the insurer's

26-12    denial of a claim or for the offer of a compromise settlement of a

26-13    claim;

26-14                            (v)  failing within a reasonable time to:

26-15                                           (A)  affirm or deny coverage

26-16    of a claim to a policyholder;  or

26-17                                           (B)  submit a reservation of

26-18    rights to a policyholder;

26-19                            (vi)  refusing, failing, or unreasonably

26-20    delaying an offer of settlement under applicable first-party

26-21    coverage on the basis that other coverage may be available or that

26-22    third parties are responsible for the damages suffered, except as

26-23    may be specifically provided in the policy;

26-24                            (vii)  undertaking to enforce a full and

26-25    final release of a claim from a policyholder when only a partial

26-26    payment has been made, provided that this prohibition does not

26-27    apply to a compromise settlement of a doubtful or disputed claim;

 27-1                            (viii)  refusing to pay a claim without

 27-2    conducting a reasonable investigation with respect to the claim;

 27-3                            (ix)  with respect to a Texas personal auto

 27-4    policy, delaying or refusing settlement of a claim solely because

 27-5    there is other insurance of a different type available to satisfy

 27-6    all or any part of the loss forming the basis of that claim;  or

 27-7                            (x)  requiring a claimant, as a condition

 27-8    of settling a claim, to produce the claimant's federal income tax

 27-9    returns for examination or investigation by the person unless:

27-10                                           (A)  the claimant is ordered

27-11    to produce those tax returns by a court;

27-12                                           (B)  the claim involves a

27-13    fire loss; or

27-14                                           (C)  the claim involves lost

27-15    profits or income.

27-16                      (b)  Paragraph (a) of this clause does not

27-17    provide a cause of action to a third party asserting one or more

27-18    claims against an insured covered under a liability insurance

27-19    policy.

27-20                (11)  Misrepresentation of Insurance Policy.

27-21    Misrepresenting an insurance policy by:

27-22                      (a)  making an untrue statement of material fact;

27-23                      (b)  failing to state a material fact that is

27-24    necessary to make other statements made not misleading, considering

27-25    the circumstances under which the statements were made;

27-26                      (c)  making a statement in such manner as to

27-27    mislead a reasonably prudent person to a false conclusion of a

 28-1    material fact;

 28-2                      (d)  making a material misstatement of law;  or

 28-3                      (e)  failing to disclose any matter required by

 28-4    law to be disclosed, including a failure to make disclosure in

 28-5    accordance with another provision of this code.

 28-6                (12)  Unreasonable Denial of Treatment.  In the case of

 28-7    a managed care entity, as defined by Article 21.102 of this code,

 28-8    the unreasonable denial of medically necessary treatment that

 28-9    results in bodily injury or death to an enrollee in  a managed care

28-10    plan.

28-11          SECTION 7.  Section 2(7), Article 21.58A, Insurance Code, is

28-12    amended to read as follows:

28-13                (7)  "Emergency care" means emergency care [bona fide

28-14    emergency services] as defined in Section 2(I), Chapter 397, Acts

28-15    of the 54th Legislature, 1955 (Article 3.70-2, Vernon's Texas

28-16    Insurance Code), and Section 2[(t)], Texas Health Maintenance

28-17    Organization Act (Article 20A.02, Vernon's Texas Insurance Code).

28-18          SECTION 8.  Section 4(i), Article 21.58A, Insurance Code, is

28-19    amended to read as follows:

28-20          (i)  Each utilization review agent shall utilize written

28-21    medically acceptable screening criteria and review procedures which

28-22    are established and periodically evaluated and updated with

28-23    appropriate involvement from physicians, including practicing

28-24    physicians, and other health care providers.  The screening

28-25    criteria and review procedures applicable with respect to services

28-26    delivered through a health maintenance organization must include

28-27    guidelines for appeals on behalf of a person with a special

 29-1    circumstance, such as a disability or life-threatening illness, if

 29-2    that person is denied services as a result of established

 29-3    conditions of the plan, limitations of coverage, network

 29-4    configuration, or requirements for participating specialists.  Such

 29-5    written screening criteria and review procedures shall be available

 29-6    for review and inspection by the commissioner and copying as

 29-7    necessary for the commissioner to carry out his or her lawful

 29-8    duties under this code, provided, however, that any information

 29-9    obtained or acquired under the authority of this subsection and

29-10    article is confidential and privileged and not subject to the open

29-11    records law or subpoena except to the extent necessary for the

29-12    board or commissioner to enforce this article.

29-13          SECTION 9.  Sections 14(g) and (h), Article 21.58A, Insurance

29-14    Code, are amended to read as follows:

29-15          (g)  This [A health maintenance organization is not subject

29-16    to this article except as expressly provided in this subsection and

29-17    Subsection (i) of this section.  If such health maintenance

29-18    organization performs utilization review as defined herein, it

29-19    shall, as a condition of licensure:]

29-20                [(1)  comply with Sections 4(b), (c), (e), (f), (h),

29-21    (i), and (l) of this article, and the board shall promulgate rules

29-22    for appropriate verification and enforcement of compliance.

29-23    However, nothing in this] article does not [shall be construed to]

29-24    prohibit or limit the distribution of a proportion of the savings

29-25    from the reduction or elimination of unnecessary medical services,

29-26    treatment, supplies, confinements, or days of confinement in a

29-27    health care facility through profit sharing, bonus, or withhold

 30-1    arrangements to participating physicians or participating health

 30-2    care providers for rendering health care services to enrollees[;]

 30-3                [(2)  establish and maintain a system for:]

 30-4                      [(A)  handling and responding to complaints by

 30-5    enrollees, patients, or health care providers;]

 30-6                      [(B)  providing health care providers with notice

 30-7    of medical necessity or program requirements that have not been

 30-8    met, including a reasonable opportunity to discuss the plan of

 30-9    treatment and clinical basis for a utilization review determination

30-10    with a physician; and]

30-11                      [(C)  providing the enrollee, patient, and health

30-12    care provider an opportunity to appeal the determination; and]

30-13                [(3)  submit to assessment of maintenance taxes under

30-14    Article 20A.33, Texas Health Maintenance Organization Act (Article

30-15    20A.33, Vernon's Texas Insurance Code), to cover the costs of

30-16    administering compliance of health maintenance organizations under

30-17    this section].

30-18          (h)  An insurer or health maintenance organization that

30-19    [which] delivers or issues for delivery a health insurance policy

30-20    or evidence of coverage in Texas and is subject to this code is not

30-21    subject to this article except as expressly provided in this

30-22    subsection and Subsection (i) of this section.  If an insurer

30-23    performs utilization review as defined herein it shall, as a

30-24    condition of licensure, comply with Sections 4 through 8 of this

30-25    article, and the board shall promulgate rules for appropriate

30-26    verification and enforcement of compliance.  If a health

30-27    maintenance organization performs utilization review as defined in

 31-1    this article, it shall, as a condition of licensure, comply with

 31-2    this article, and the board shall adopt rules for appropriate

 31-3    verification and enforcement of compliance.  Such insurers and

 31-4    health maintenance organizations are [shall be] subject to

 31-5    assessment of maintenance tax under Article 4.17 of this code or

 31-6    Section 33, Texas Health Maintenance Organization Act (Article

 31-7    20A.33, Vernon's Texas Insurance Code), to cover the costs of

 31-8    administering compliance of insurers and health maintenance

 31-9    organizations under this section.

31-10          SECTION 10.  Section 161.091(f), Health and Safety Code, is

31-11    amended to read as follows:

31-12          (f)  This section shall not apply to licensed insurers,

31-13    governmental entities, including intergovernmental risk pools

31-14    established under Chapter 172, Local Government Code, and

31-15    institutions as defined in the Texas State College and University

31-16    Employees Uniform Insurance Benefits Act (Article 3.50-3, Vernon's

31-17    Texas Insurance Code), group hospital service corporations,

31-18    preferred provider organizations, or health maintenance

31-19    organizations which reimburse, provide, offer to provide, or

31-20    administer hospital, medical, dental, or other health-related

31-21    benefits under a health benefits plan for which it is the payor.

31-22          SECTION 11.  (a)  This Act takes effect September 1, 1997.

31-23          (b)  This Act applies only to coverage under a managed care

31-24    plan or health care plan issued by a health maintenance

31-25    organization, as applicable, that is delivered, issued for

31-26    delivery, or renewed on or after June 1, 1998.  Coverage under a

31-27    plan that is delivered, issued for delivery, or renewed before June

 32-1    1, 1998, is governed by the law as it existed immediately before

 32-2    the effective date of this Act, and that law is continued in effect

 32-3    for that purpose.

 32-4          (c)  This Act applies only to credentialing of health care

 32-5    providers under a managed care plan on or after June 1, 1998.

 32-6    Credentialing of health care providers before June 1, 1998, is

 32-7    governed by the law as it existed immediately before the effective

 32-8    date of this Act, and that law is continued in effect for that

 32-9    purpose.

32-10          (d)  The commissioner of insurance by rule shall adopt a

32-11    schedule for implementation of Section 13(i), Texas Health

32-12    Maintenance Organization Act (Article 20A.13, Vernon's Texas

32-13    Insurance Code), as amended by this Act.  A health maintenance

32-14    organization, including a health maintenance organization offering

32-15    only a single care service, is not required to satisfy the

32-16    requirements of that subsection before the date established in the

32-17    schedule adopted by the commissioner.

32-18          (e)  The commissioner of insurance shall conduct a study of

32-19    the costs of compliance by managed care entities with, and the

32-20    economic impact on employees in this state, both public and

32-21    private, of, Subchapter G of Chapter 21, Insurance Code, as added

32-22    by this Act.  The commissioner may direct Texas Department of

32-23    Insurance personnel to assist the committee that conducts the

32-24    study.  The commissioner shall issue a report on the results of the

32-25    study to the 76th Legislature not later than January 31, 1999.

32-26          SECTION 12.  The importance of this legislation and the

32-27    crowded condition of the calendars in both houses create an

 33-1    emergency and an imperative public necessity that the

 33-2    constitutional rule requiring bills to be read on three several

 33-3    days in each house be suspended, and this rule is hereby suspended.