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