By Farabee H.B. No. 2324
2001S0463/2
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to discrimination in health care rates and reimbursement;
1-3 providing administrative penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. SHORT TITLE. This Act may be cited as the
1-6 Omnibus Women's Equal Health Care Act.
1-7 SECTION 2. PURPOSE. Historically, there has been widespread
1-8 discrimination in compensation to providers of women's health care.
1-9 Providers involved with female-specific medical procedures who
1-10 devote the same amount of time and equivalent skill and have
1-11 similar or even greater risks of liability are paid less than when
1-12 those providers or others perform comparable male-specific
1-13 procedures or gender-neutral procedures. This discrimination
1-14 creates an economic disincentive to invest funds in training
1-15 doctors, in creating suitable hospital facilities, and in engaging
1-16 in female-specific medical research that further results in unequal
1-17 treatment of women in the health care field. This discrimination
1-18 also creates an economic disincentive for doctors to specialize in
1-19 or perform female-specific procedures, especially in rural areas.
1-20 It is the policy of this state that no such discrimination against
1-21 women will be tolerated. To that end, this Act should be liberally
1-22 construed to effectuate its purposes. The purpose of this Act is
1-23 to remedy the unequal health care rates and payments by requiring
1-24 that all third party payors shall pay providers of women's health
2-1 services equal pay for equal work.
2-2 SECTION 3. DEFINITIONS. In this Act:
2-3 (1) "Equal pay for equal work" means that for each
2-4 hour or unit of physician time, physician practice resource, nurse
2-5 time, licensed and unlicensed ancillary provider time, outpatient
2-6 facility staff, outpatient facility resource, hospital staff time,
2-7 and hospital resource used to provide for women's reproductive
2-8 health and oncology care, the health care provider may not be paid
2-9 less than an amount equal to average compensation per hour or unit
2-10 for the same resources used for health services provided
2-11 exclusively for men or the general population.
2-12 (2) "Provider" means a physician, hospital, or other
2-13 licensed provider of health care services including a nurse
2-14 practitioner, registered nurse, physician assistant, home health
2-15 aide, or surgery center or other outpatient care center.
2-16 (3) "Third party payor" means the State of Texas,
2-17 including any entity acting on its behalf when it acts to pay for
2-18 or reimburse health care procedures under any state or federal
2-19 program; an insurance company; a health insuring agent; an
2-20 independent practice association; a physician-hospital
2-21 organization; or a health maintenance organization or other managed
2-22 care organization.
2-23 SECTION 4. EQUAL PAY FOR EQUAL WORK. A third party payor
2-24 shall pay a provider of women's health services equal pay for equal
2-25 work.
2-26 SECTION 5. AMENDMENT. Article 21.21-8, Insurance Code, is
3-1 amended to read as follows:
3-2 Art. 21.21-8. UNFAIR DISCRIMINATION
3-3 Sec. 1. SCOPE [Scope]. This article shall apply to any
3-4 person engaged in the business of insurance or the assumption of
3-5 risk on behalf of such a business. "Person" shall mean any
3-6 individual, corporation, association, partnership, reciprocal
3-7 exchange, interinsurer, Lloyds insurer, fraternal benefit society,
3-8 county mutual, farm mutual, health maintenance organization, and
3-9 any other legal entity engaged in the business of insurance,
3-10 including agents, brokers, adjusters, independent practice
3-11 associations, physician-hospital organizations, managed care
3-12 organizations, and life insurance counselors.
3-13 Sec. 2. PROHIBITION. No person shall engage in any
3-14 practice of unfair discrimination as defined in this article, or
3-15 that is determined under this article to be a practice of unfair
3-16 discrimination, in the business of insurance [by making or
3-17 permitting any unfair discrimination between individuals of the
3-18 same class and of essentially the same hazard in the amount of
3-19 premium, policy fees, or rates charged for any policy or contract
3-20 of insurance or in the benefits payable thereunder, or in any of
3-21 the terms or conditions of such contract, or in any other manner
3-22 whatever].
3-23 Sec. 3. DEFINITION. In this article, "unfair
3-24 discrimination" means:
3-25 (1) refusing to insure; refusing to continue to
3-26 insure; limiting the amount, extent, kind of coverage, or benefits
4-1 available; limiting the terms or conditions of coverage or charging
4-2 individuals of the same class and of essentially the same hazard or
4-3 the same entity covering the individuals different rates, premiums,
4-4 or policy fees for the same coverage; or reimbursing for medical
4-5 procedures at a different rate because of age, sex, marital status,
4-6 or geographical location or on the basis of pregnancy, childbirth,
4-7 or a related medical condition; provided, however, that nothing in
4-8 this subdivision shall prohibit an insurer from taking marital
4-9 status into account for the purpose of defining persons eligible
4-10 for dependent benefits;
4-11 (2) refusing to insure; refusing to continue to
4-12 insure; limiting the amount, extent, or kind of coverage available;
4-13 or charging an individual a different rate for the same coverage
4-14 because of disability or partial disability; or
4-15 (3) refusing to insure; refusing to continue to
4-16 insure; limiting the amount, extent, or kind of coverage available;
4-17 or charging an individual a different rate for the same coverage
4-18 because of race, color, religion, or national origin.
4-19 Sec. 4. SUIT. (a) A person who has sustained economic
4-20 damages as a result of another's engaging in unfair discrimination,
4-21 as defined in Section 3 [2] of this article, including a health
4-22 care provider who has suffered injury in fact because of the unfair
4-23 discrimination, may maintain an action against the person or
4-24 persons engaging in such acts or practices in a district court in
4-25 Travis County, Texas, and not elsewhere.
4-26 (b) In a suit filed under this article, any plaintiff who
5-1 prevails may obtain:
5-2 (1) the amount of economic damages plus court costs
5-3 and attorneys' fees. Court costs may include any reasonable and
5-4 necessary expert witness fees. If the trier of fact finds that the
5-5 defendant knowingly committed any acts prohibited by this article,
5-6 the court may award a civil penalty in an amount of not more than
5-7 $25,000 per claimant; and
5-8 (2) an order enjoining such acts or failure to act.
5-9 (c) All actions under this article must be commenced within
5-10 12 months after the date on which the plaintiff was denied
5-11 insurance or the unfair act occurred.
5-12 (d) On a finding by the court that an action under this
5-13 section was groundless and brought in bad faith or brought for the
5-14 purpose of harassment, the court shall award the defendant
5-15 reasonable and necessary attorneys' fees.
5-16 Sec. 5 [4]. AFFIRMATIVE DEFENSE. A legal entity engaged in
5-17 the business of insurance as specified in Section 1 of this article
5-18 is not in violation of the prohibited acts defined in or determined
5-19 pursuant to Section 3 [2] of this article if the refusal to insure;
5-20 the refusal to continue to insure; the limiting of the amount,
5-21 extent, or kind of coverage; or the charging of an individual a
5-22 different rate for the same coverage is based upon sound actuarial
5-23 principles, except that gender-based actuarial tables may not be
5-24 used.
5-25 Sec. 6 [5]. EXCEPTION. A legal entity engaged in the
5-26 business of insurance as specified in Section 1 of this article is
6-1 not in violation of the prohibited acts defined in or determined
6-2 pursuant to Section 3 [2] of this article if the entity provides
6-3 insurance coverage only to persons who are required to obtain or
6-4 maintain membership or qualification for membership in a club,
6-5 group, or organization so long as membership or membership
6-6 qualifications are uniform requirements of the insurer as a
6-7 condition of providing insurance, and are applied uniformly
6-8 throughout this state, and the entity does not engage in any of the
6-9 prohibited acts defined in or determined pursuant to Section 3 [2]
6-10 of this article for persons who are qualified members, except as
6-11 otherwise provided in this section.
6-12 Sec. 7. PENALTIES. Any legal entity engaged in the business
6-13 of insurance in this state found to be in violation of or failing
6-14 to comply with this article is subject to the sanctions authorized
6-15 by Chapter 82 of this code, including administrative penalties
6-16 authorized under Chapter 84 of this code. The commissioner may
6-17 also use the cease and desist procedures authorized by Chapter 83
6-18 of this code.
6-19 SECTION 6. AMENDMENT. Subsection (a), Section 32.028, Human
6-20 Resources Code, is amended to read as follows:
6-21 (a) The department shall adopt reasonable rules and
6-22 standards governing the determination of fees, charges, and rates
6-23 for medical assistance payments. The rules and standards shall
6-24 ensure that the fees, charges, and rates conform with the
6-25 requirements of equal pay for equal work.
6-26 (g) For the purposes of this section, "equal pay for equal
7-1 work" means that for each hour or unit of physician time, physician
7-2 practice resource, nurse time, licensed and unlicensed ancillary
7-3 provider time, outpatient facility staff, outpatient facility
7-4 resource, hospital staff time, and hospital resource used to
7-5 provide for women's reproductive health and oncology care, the
7-6 health care provider shall not be paid less than an amount equal to
7-7 average compensation per hour or unit for the same resources used
7-8 for health services provided exclusively for men or the general
7-9 population.
7-10 SECTION 7. REPEALER. Article 21.21-6, Insurance Code, as
7-11 added by Chapter 415, Acts of the 74th Legislature, Regular
7-12 Session, 1995, is repealed.
7-13 SECTION 8. EFFECTIVE DATE; TRANSITION. (a) This Act takes
7-14 effect September 1, 2001.
7-15 (b) The changes in law made by this Act apply only to an
7-16 insurance policy that is delivered, issued for delivery, or renewed
7-17 on or after January 1, 2002. A policy delivered, issued for
7-18 delivery, or renewed before January 1, 2002, is governed by the law
7-19 as it existed immediately before the effective date of this Act,
7-20 and that law is continued in effect for that purpose.
7-21 (c) Not later than 90 days after the effective date of this
7-22 Act, the Texas Board of Health, the Texas Board of Human Services,
7-23 and the Texas Department of Insurance shall repeal any rules
7-24 contrary to this Act and shall adopt rules necessary to implement
7-25 this Act. The rules shall require that providers justify any
7-26 disparity in reimbursement rates for the provision of health care
8-1 services and that the disparity accurately reflects the difference
8-2 in time and resources expended to provide the health care services.