SRC-SLL, DBM, JXG C.S.S.B. 1468 76(R)BILL ANALYSIS


Senate Research CenterC.S.S.B. 1468
By: Harris
Economic Development
4/15/1999
Committee Report (Substituted)


DIGEST 

Currently, federal antitrust law prohibits physicians from establishing
networks to negotiate contract provisions with health benefit plans.
C.S.S.B. 1468 would authorize physicians practicing within the service area
of a health benefit plan to collectively negotiate the terms and conditions
described by Subsection (b) of this article, if the health plan has
substantial market power and if the physicians have a representative to
engage in collective negotiations.   

PURPOSE

As proposed, C.S.S.B. 1468 sets forth provisions for the requirements of
collective negotiations by physicians, or their representative, with
certain health benefit plans. 

RULEMAKING AUTHORITY

Rulemaking authority is granted to the attorney general in SECTION 1
(Articles 29.11 and 29.13, Chapter 29, Insurance Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends the Insurance Code, by adding Chapter 29, as follows:

CHAPTER 29.  COLLECTIVE NEGOTIATIONS BY PHYSICIANS WITH HEALTH BENEFIT PLANS

Art. 29.01. FINDING AND PURPOSES. Provides that the legislature finds that
collective negotiation by competing physicians of certain terms and
conditions of contracts with health plans will result in pro-competitive
effects in the absence of any express or implied threat of retaliatory
collective action, such as boycott or strike, by physicians. Provides that
although the legislature finds that collective negotiations over
fee-related terms may in some circumstances yield anti-competitive effects,
it also recognizes that there are instances in which health plans dominate
the market to such a degree that fair negotiations between physicians and
the plan are instances in which health plans dominate the market to such a
degree that fair negotiations between physicians and the plan are
unobtainable absent any collective action on behalf of physicians. Provides
that health plans have the ability to virtually dictate the terms of the
contract they offer physicians, in these instances. Provides that the
legislature finds it appropriate and necessary to authorize collective
negotiations on fee-related and other issues where it determines that such
imbalances exist.   

Art. 29.02. DEFINITIONS. Defines "health benefit plan," "person,"
"physicians' representative."  

Art. 29.03. SCOPE OF CHAPTER. Provides that this chapter applies only to a
health benefit plan that provides benefits for medical or surgical expenses
incurred as a result of a health condition, accident, or sickness,
including certain entities. Sets forth descriptions of the limitations of
this chapter. 

Art. 29.04. COLLECTIVE NEGOTIATION AUTHORIZED. Authorizes competing
physicians within the service area of a health plan to meet and communicate
for the purpose  of collectively negotiating certain terms and conditions,
including the inclusion or alteration of terms and conditions to the extent
they are the subject of government regulation prohibiting or requiring the
particular term or condition in question; however, such restriction does
not limit physician rights to collectively petition government for a change
in such regulation. Makes conforming changes.  

Art. 29.05. LIMITATIONS ON COLLECTIVE NEGOTIATION. Prohibits competing
physicians from meeting and communicating for the purposes of collectively
negotiating certain conditions of the health plan. Makes conforming
changes. 

Art. 29.06. EXCEPTION TO LIMITATIONS ON COLLECTIVE NEGOTIATION. Authorizes
competing physicians within the service area of a health plan to
collectively negotiate the terms and conditions specified in Article 29.05
where the health plan has substantial market power. Provides that
substantial market power will be based upon the health plan's and any of
its affiliated entities' number of covered lives in a defined geographic
area as determined by the commissioner of insurance. Requires the
Department of Insurance (department) to have the authority to collect and
investigate information necessary to determine on an annual basis the
average number of covered lives per month per county by every health care
entity in the state.  

Art. 29.07. COLLECTIVE NEGOTIATION REQUIREMENTS. Sets forth the required
collective negotiation rights conformities. 

Art. 29.08. REQUIREMENTS FOR PHYSICIANS' REPRESENTATIVE. Requires any
person or organization proposing to act or acting as a representative of
physicians for the purpose of exercising authority granted under this
chapter to comply with certain requirements. Makes conforming changes. 

Art. 29.09. APPROVAL PROCESS BY ATTORNEY GENERAL. Requires the attorney
general to either approve or disapprove an initial filing, supplemental
filing and a proposed contract within 30 days of each filing. Requires the
attorney general to furnish a written explanation of any deficiencies along
with a statement of specific remedial measures as to how such deficiencies
could be corrected, if disapproved. Provides that a representative who
fails to obtain the attorney general's approval is deemed to act outside
the authority granted under this section. Requires the attorney general to
approve a request to enter into collective negotiations or a proposed
contract, if he determines that the applicants have demonstrated that the
likely benefits resulting from the collective negotiation or proposed
contract outweigh the disadvantages attributable to a reduction in
competition that may result from the collective negotiation or proposed
contract. Requires an approval of the initial filing by the attorney
general to be effective for all subsequent negotiations between the parties
specified in the initial filing. Requires the applicant to have the right
to petition a district court for a mandamus order requiring the attorney
general to approve or disapprove the contents of the filing forthwith, if
the attorney general does not issue a written approval or rejection of an
initial filing, supplemental filing, or proposed contract within the
specified time period.  Requires the petition to be filed in a district
court in Travis County.  

Art. 29.10. CERTAIN COLLECTIVE ACTION PROHIBITED. Provides that nothing
contained in this chapter shall be construed to enable physicians to
collectively coordinate any cessation of health care services. Requires the
representative of the physicians to advise physicians of the provisions of
this section and to warn physicians of the potential for legal action
against physicians who violate state or federal antitrust laws when acting
outside the authority of this chapter. 

Art. 29.11. RULEMAKING AUTHORITY. Authorizes the attorney general and
commissioner of insurance to have the authority to promulgate rules
necessary to implement the provisions of this chapter.  

Art. 29.12. CONSTRUCTION. Prohibits this chapter from being construed to
prohibit physicians from negotiating the terms and conditions of contracts
as permitted by other state  or federal law. 

Art. 29.13.  FEES.  Requires each person who acts as the representative of
negotiating parties under this chapter to pay to the department a fee to
act as a representative.  Authorizes the attorney general, by rule, to set
fees in amounts reasonable and necessary to cover the costs incurred by the
state in administering this chapter. Requires a fee collected under this
article to be deposited in the state treasury to the credit of the
operating fund from which the expense was incurred. 

SECTION 2.Effective date: September 1, 1999.

SECTION 3.Emergency clause.    


SUMMARY OF COMMITTEE CHANGES

SECTION 1.

Adds Article 29.01, Chapter 29, Insurance Code, regarding findings of the
legislature.  

 Redesignates proposed Articles 29.02 through 29.13. 

Amends Article 29.02, Chapter 29, Insurance Code, to redefine "health
benefit plan." Deletes text regarding Subsection (b).   

Amends Article 29.03, Chapter 29, Insurance Code, to provide that this
chapter does not apply to a long-term care policy, unless the attorney
general determines that the policy provides benefit coverage so
comprehensive that the policy is a health benefit plan. 

Amends Article 29.04, Chapter 29, Insurance Code, to authorize competing
physicians within the service area of a health plan to meet and communicate
for the purpose of collectively negotiating certain terms and conditions,
including the inclusion or alteration of terms and conditions to the extent
they are the subject of government regulation prohibiting or requiring the
particular term or condition in question; however, such restriction does
not limit physician rights to collectively petition government for a change
in such regulation. Deletes text regarding Subsections (b) and (c). Makes
conforming changes.  

Amends Article 29.05, Chapter 29, Insurance Code, to prohibit competing
physicians from meeting and communicating for the purposes of collectively
negotiating certain conditions of the health plan. Redesignates proposed
Subdivisions (1)-(5) as Subsections (a)-(d). Deletes text regarding
Subsections (a)(5) and (b). Makes conforming changes.  

Adds Article 29.06, Chapter 29, Insurance Code, regarding an exception to
limitations on collective negotiation. 

Amends Article 29.07, Chapter 29, Insurance Code, to set forth the required
collective negotiation rights conformities. Redesignates proposed
Subdivisions (1)(5) as Subsections (a)-(f). Makes conforming changes. 

Amends Article 29.08, Chapter 29, Insurance Code, to require any person or
organization proposing to act or acting as a representative of physicians
for the purpose of exercising authority granted under this chapter to
comply with certain requirements. Deletes text regarding Subsections
(d)-(g). Makes conforming changes. 

Adds Article 29.09, Chapter 29, Insurance Code, regarding the approval
process by the attorney general. 

Amends Article 29.10, Chapter 29, Insurance Code, to make conforming
changes. 

 Adds Article 29.11, Chapter 29, Insurance Code, regarding rulemaking
authority. 

Adds Article 29.12, Chapter 29, Insurance Code, regarding construction of
this article. 

Amends Article 29.13, Chapter 29, Insurance Code, to authorize the attorney
general, by rule, to set fees in amounts reasonable and necessary to cover
the costs incurred by the state in administering this chapter. Requires a
fee collected under this article to be deposited in the state treasury to
the credit of the operating fund from which the expense was incurred. Makes
conforming changes.