By: Duncan S.B. No. 1738
A BILL TO BE ENTITLED
AN ACT
relating to consumer access to health care information and consumer
protection for services provided by or through hospitals,
ambulatory surgical centers, and birthing centers; providing
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. SHORT TITLE. This Act may be cited as the
Consumer Right to Know Act.
SECTION 2. Subtitle G, Title 4, Health and Safety Code, is
amended by adding Chapter 322 to read as follows:
CHAPTER 322. CONSUMER ACCESS TO HEALTH CARE INFORMATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 322.001. DEFINITIONS. (a) In this chapter:
(1) "Billed charge" means the amount a facility
charges for a health care service or supply.
(2) "Charge master" means a facility's schedule of
billed charges for each health care service, health care supply, or
combination of health care services and supplies.
(3) "Consumer" means any person who is considering
receiving, is receiving, or has received a health care service or
supply as a patient from a facility. The term includes the personal
representative of the patient.
(4) "Department" means the Department of State Health
Services.
(5) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(6) "Facility" means:
(A) an ambulatory surgical center licensed under
Chapter 243;
(B) a birthing center licensed under Chapter 244;
or
(C) a hospital licensed under Chapter 241.
(7) "Health benefit plan" means a health benefit plan
that provides benefits for medical or surgical expenses incurred as
a result of a health condition, accident, or sickness, including an
individual, group, blanket, or franchise insurance policy or
insurance agreement, a group hospital service contract, or an
individual or group evidence of coverage that is offered by:
(A) an insurance company;
(B) a group hospital service corporation
operating under Chapter 842, Insurance Code;
(C) a fraternal benefit society operating under
Chapter 885, Insurance Code;
(D) a stipulated premium insurance company
operating under Chapter 884, Insurance Code;
(E) a health maintenance organization operating
under Chapter 843, Insurance Code;
(F) to the extent permitted by the Employee
Retirement Income Security Act of 1974 (29 U.S.C. Section 1001 et
seq.), a health benefit plan that is offered by:
(i) a multiple employer welfare arrangement
as defined by Section 3, Employee Retirement Income Security Act of
1974 (29 U.S.C. Section 1002); or
(ii) another analogous benefit
arrangement; or
(G) an approved nonprofit health corporation
that is certified under Section 162.001, Occupations Code, and that
holds a certificate of authority issued by the commissioner of
insurance under Chapter 844, Insurance Code.
Sec. 322.002. RULES. The executive commissioner may adopt
and enforce rules to further the purposes of this chapter.
[Sections 322.003-322.050 reserved for expansion]
SUBCHAPTER B. BILLING CHARGES
Sec. 322.051. NOTICE TO CONSUMER. Before any nonemergency
treatment or service is performed, a facility shall provide notice
to a consumer before or on admission to a facility of the consumer's
right to receive:
(1) a free copy of the facility's common procedure
charge list in accordance with Section 322.054;
(2) a notice regarding the availability of the common
procedure charge information on the Consumer Guide to Healthcare
website created under Section 322.055; and
(3) a free written estimate of charges in accordance
with Section 322.056(c).
Sec. 322.052. CHARGE MASTER. (a) A facility may have only
one current charge master.
(b) A charge master must include an initial effective date.
Sec. 322.053. CREATION OF FACILITY COMMON PROCEDURES LIST.
(a) The department shall identify 50 common inpatient procedures
and 50 common outpatient procedures performed for patients by
facilities in this state. A procedure may be a single health care
service or supply or a group of services and supplies commonly
provided as a unit to patients.
(b) A facility shall provide to the department in a format
developed by the department a list of the 50 common inpatient
procedures and 50 common outpatient procedures performed for
patients of the facility in this state. The department shall use the
lists provided by facilities to develop the common procedures list
described in Subsection (a).
(c) The department shall update the common procedures list
at least every two years.
Sec. 322.054. FACILITY COMMON PROCEDURE CHARGE LIST.
(a) A facility shall establish and maintain a list of the average
charge for each procedure identified in the common procedures list
created by the department under Section 322.053 if the procedure is
performed within the facility.
(b) The average charge for each procedure in a facility's
procedure charge list must be based on the charges listed for
individual services and supplies in the facility's current charge
master at the time the list was compiled.
(c) A facility shall have only one current procedure charge
list and shall update the facility's procedure charge list on a
semi-annual basis to reflect any changes made to the facility's
charge master.
(d) A facility shall:
(1) identify each version of the procedure charge list
by the list's initial effective date;
(2) retain a copy of each version until the second
anniversary of each list's effective date;
(3) post on the facility's Internet website, if any, a
copy of the current version of the procedure charge list;
(4) provide notice to a consumer requesting the
procedure charge list that the actual charges for a procedure will
vary based on the person's medical condition and other factors
associated with performance of the procedure; and
(5) provide notice to a consumer requesting the
procedure charge list that the range of charges for a procedure may
differ from the amount to be paid by the consumer or the consumer's
third party payor.
(e) The facility shall:
(1) provide free of charge to a consumer on request a
written copy of any version of the procedure charge list retained
under Subsection (d); and
(2) inform the consumer that the current procedure
charge list is posted on the facility's Internet website, if any,
and provide the consumer with the Internet website address.
Sec. 322.055. CONSUMER GUIDE TO HEALTH CARE. (a) A
facility shall file with the department the procedure charge list
created under Section 322.054.
(b) The department shall make available on the department's
Internet website a consumer guide to health care. The guide must
include the procedure charge list for each facility that submits
the list required under Subsection (a).
(c) The department may accept gifts and grants to fund the
consumer guide to health care.
Sec. 322.056. BILLING OF FACILITY SERVICES. (a) Each
facility shall develop, implement, and enforce written policies for
the billing of hospital services and supplies. The policies must
address:
(1) the provision of the itemized statements required
by Subsection (d);
(2) whether interest will be applied to any billed
service not covered by a third party payor and the rate of any
interest charged;
(3) the providing of a notice concerning the ability
to complain regarding the billed amount in accordance with Sections
322.101 and 311.0025;
(4) the providing of a notice that if a consumer
objects to the bill or treatment, the consumer may file a complaint
with the department and include the name, mailing address, and
telephone number of the department;
(5) the procedure for handling complaints relating to
billed services; and
(6) a disclosure to a consumer requesting services
from the facility that:
(A) provides confirmation whether the facility
is a participating provider under the consumer's third party payor
coverage on the date services are to be rendered; and
(B) informs the consumer that physicians or other
providers who may provide services to the consumer while in the
facility may not be a participating provider with the same third
party payors as the facility.
(b) Each facility shall post in the general waiting area and
in the waiting areas of any off-site or onsite registration,
admission, or business office a clear and conspicuous notice of the
availability of the policies required by Subsection (a).
(c) The facility shall provide a written estimate of the
facility's charges for any procedure, service, or supply upon
request and before an elective admission or scheduling of
nonemergency outpatient procedures or services. The written
estimate must be provided within a reasonable time based on the
number of charge estimates requested and whether the request was
made during normal operating hours of the facility's business
office. The facility must advise the consumer that:
(1) the request for a written estimate of charges may
result in a delay in the scheduling and provision of the procedure,
service, or supply; and
(2) the consumer may be personally liable for payment
of the procedure, service, or supply, depending on the consumer's
health benefit plan coverage.
(d) Not later than the 30th business day after the date of
the discharge of a consumer who receives facility services, the
facility shall provide to the consumer at the consumer's request an
itemized statement of the billed services. The itemized statement
must:
(1) be printed in a conspicuous manner;
(2) list the date services and supplies were provided;
(3) state whether:
(A) a claim has been submitted to a third party
payor; and
(B) a third party payor has paid the claim;
(4) if payment is not required, state that payment is
not required:
(A) in a typeface that is bold-faced,
capitalized, underlined, or otherwise set out from surrounding
written material; or
(B) by other reasonable means so as to be
conspicuous that payment is not required; and
(5) contain the telephone number of the facility to
call for an explanation of acronyms, abbreviations, and numbers
used to describe the services provided or supplies used or any other
questions regarding the bill.
(e) To be entitled to receive a statement, a consumer must
request the statement not later than one year after the date on
which the person is discharged from the facility. The facility
shall provide the statement to the consumer not later than the 30th
day after the date on which the statement is requested.
(f) A facility shall provide an itemized statement of billed
services to a third party payor that is responsible or is paying all
or part of the billed services provided and who has received a claim
for payment of those services. To be entitled to receive a
statement, the third party payor must request the statement from
the facility and must have received a claim for payment. The
request must be made not later than one year after the date on which
the payor received the claim for payment. The facility shall
provide the statement to the payor not later than the 30th day after
the date on which the payor requests the statement. If a third
party payor receives a claim for payment of part but not all of the
billed services, the third party payor may request an itemized
statement of only the billed services for which payment is claimed
or to which any deduction or copayment applies.
(g) If a consumer or a third party payor requests more than
two copies of the statement, the facility may charge a reasonable
fee for the third and subsequent copies provided. The fee may not
exceed the facility's cost to copy, process, and deliver the copy to
the consumer or third party payor.
(h) If a consumer overpays a facility, the facility must
refund the amount of the overpayment not later than the 30th day
after the date it is determined that an overpayment has been made.
This subsection does not apply to an overpayment covered by Chapter
1301, Insurance Code, or Section 843.350, Insurance Code.
Sec. 322.057. CONSUMER WAIVER PROHIBITED. The provisions
of this subchapter may not be waived, voided, or nullified by a
contract or an agreement between a facility and a consumer.
[Sections 322.058-322.100 reserved for expansion]
SUBCHAPTER C. COMPLAINT RESOLUTION
Sec. 322.101. COMPLAINT PROCESS. (a) A facility shall
have a procedure for handling complaints relating to the charges
for health care services and supplies. If a consumer objects to the
billed amount for a particular service or supply, the facility will
make a good faith effort to resolve the complaint in an informal
manner based on its complaint procedures. If the objection cannot
be resolved informally, the facility shall advise the consumer that
a complaint may be filed with the department and shall provide the
consumer with the mailing address and telephone number of the
department.
(b) If a facility is not a participating provider with a
third party payor, the facility shall have a procedure for handling
complaints by those third party payors relating to the charges for
health care services and supplies. If a third party payor objects to
the billed amount for a particular service or supply pursuant to
this subsection, the facility will make a good faith effort to
resolve any complaints in an informal manner based on its complaint
procedures. If the objection cannot be resolved informally, the
facility shall advise the third party payor that a complaint may be
filed with the department and shall provide the third party payor
with the mailing address and telephone number of the department.
(c) The department shall complete an investigation of a
complaint filed pursuant to this section not later than the 60th day
after the date the department receives the complaint and all
information necessary for the department to make a determination
concerning the validity of the complaint.
(d) The department may extend the time necessary to complete
an investigation if:
(1) additional information is needed;
(2) an on-site review is necessary;
(3) the facility, consumer, or the third party payor
does not provide all documentation necessary to complete the
investigation; or
(4) other circumstances beyond the control of the
department occur.
(e) If the department determines that a complaint regarding
charges for health care services and supplies is valid, the
department may take disciplinary action as provided under
Subchapter D.
[Sections 322.102-322.150 reserved for expansion]
SUBCHAPTER D. ENFORCEMENT AND DISCIPLINARY ACTIONS
Sec. 322.151. AUDIT AND INVESTIGATION. The department may
audit, investigate, or take any other necessary action to
reasonably ensure a facility is complying with Subchapter B or C.
Sec. 322.152. DISCIPLINARY ACTION. (a) A facility that
violates Subchapter B or C is subject to disciplinary action by the
department, as authorized by the applicable licensing law.
(b) Prior to taking any disciplinary action under
Subsection (a), the department shall:
(1) notify a facility that the facility is violating
or has violated this chapter or a rule adopted under this chapter;
and
(2) provide the facility with an opportunity to
correct the violation.
SECTION 3. Subsection (b), Section 1271.055, Insurance
Code, is amended to read as follows:
(b) If medically necessary covered services are not
available through network physicians or providers, the health
maintenance organization, on the request of a network physician or
provider and within a reasonable period, shall:
(1) allow referral to a non-network physician or
provider; and
(2) [fully] reimburse the non-network physician or
provider at the usual and customary rate or at an agreed rate.
SECTION 4. Subdivision (1), Subsection (a), Section
1272.301, Insurance Code, is amended as follows:
(a) A contract between a health maintenance organization
and a limited provider network or delegated entity must provide
that:
(1) if medically necessary covered services are not
available through network physicians or providers, the limited
provider network or delegated entity, on the request of a network
physician or provider, shall:
(A) allow a referral to a non-network physician
or provider; and
(B) [fully] reimburse the non-network physician
or provider at the usual and customary rate or an agreed rate; and
(2) before the limited provider network or delegated
entity may deny a referral to a non-network physician or provider, a
specialist of the same or similar specialty as the type of physician
or provider to whom the referral is requested must conduct a review
of the request.
SECTION 5. Subtitle F, Title 8, Insurance Code, is amended
by adding Chapter 1456 to read as follows:
CHAPTER 1456. DISCLOSURE OF PROVIDER STATUS
Sec. 1456.001. DEFINITIONS. In this chapter:
(1) "Balance billing" means the practice of charging
an enrollee in a health benefit plan that uses a provider network to
recover from the enrollee the balance of a non-network health care
provider's fee for service received by the enrollee from the health
care provider that is not fully reimbursed by the enrollee's health
benefit plan.
(2)"Enrollee" means an individual who is eligible to
receive health care services through a health benefit plan.
(3) "Facility-based physician" means a radiologist,
an anesthesiologist, a pathologist, or an emergency department
physician:
(A) to whom the facility has granted clinical
privileges; and
(B) who provides services to patients of the
facility under those clinical privileges.
(4) "Health care facility" means a hospital, emergency
clinic, outpatient clinic, or other facility providing health care
services.
(5) "Health care practitioner" means an individual who
is licensed to provide and provides health care services.
(6) "Health care provider" means a health care
facility or health care practitioner.
(7) "Provider network" means a health benefit plan
under which health care services are provided to enrollees through
contracts with health care providers and that requires those
enrollees to use health care providers participating in the plan
and procedures covered by the plan. The term includes a network
operated by:
(A) a health maintenance organization;
(B) a preferred provider benefit plan issuer; or
(C) another entity that issues a health benefit
plan, including an insurance company.
Sec. 1456.002. APPLICABILITY OF CHAPTER. This chapter
applies to any health benefit plan that:
(1) provides benefits for medical or surgical expenses
incurred as a result of a health condition, accident, or sickness,
including an individual, group, blanket, or franchise insurance
policy or insurance agreement, a group hospital service contract,
or an individual or group evidence of coverage that is offered by:
(A) an insurance company;
(B) a group hospital service corporation
operating under Chapter 842;
(C) a fraternal benefit society operating under
Chapter 885;
(D) a stipulated premium company operating under
Chapter 884;
(E) a health maintenance organization operating
under Chapter 843;
(F) a multiple employer welfare arrangement that
holds a certificate of authority under Chapter 846;
(G) an approved nonprofit health corporation
that holds a certificate of authority under Chapter 844; or
(H) an entity not authorized under this code or
another insurance law of this state that contracts directly for
health care services on a risk-sharing basis, including a
capitation basis; or
(2) provides health and accident coverage through a
risk pool created under Chapter 172, Local Government Code,
notwithstanding Section 172.014, Local Government Code, or any
other law.
Sec. 1456.003. REQUIRED DISCLOSURE: HEALTH BENEFIT PLAN.
(a) Each health benefit plan that provides health care through a
provider network shall provide notice to its enrollees that:
(1) a facility-based physician or other health care
practitioner may not be included in the health benefit plan's
provider network; and
(2) a health care practitioner described by
Subdivision (1) may balance bill the enrollee for amounts not paid
by the health benefit plan.
(b) The health benefit plan shall provide the disclosure in
writing to each enrollee:
(1) in any materials sent to the enrollee in
conjunction with issuance or renewal of the plan's insurance policy
or evidence of coverage;
(2) in an explanation of payment summary provided to
the enrollee;
(3) in any other analogous document that describes the
enrollee's benefits under the plan; or
(4) conspicuously displayed, on any website that an
enrollee is reasonably expected to access.
Sec. 1456.004. REQUIRED DISCLOSURE: HEALTH CARE FACILITY.
(a) Each health care facility that has entered into a contract
with a health benefit plan to serve as a provider in the health
benefit plan's provider network shall provide notice to enrollees
receiving health care services at the facility that:
(1) a facility-based physician or other health care
practitioner may not be included in the health benefit plan's
provider network; and
(2) a health care practitioner described by
Subdivision (1) may balance bill the enrollee for amounts not paid
by the health benefit plan.
(b) The health care facility shall provide the disclosure in
writing at the time the enrollee is first admitted to the facility
or first receives services at the facility.
Sec. 1456.005. REQUIRED DISCLOSURE: FACILITY-BASED
PHYSICIANS. If a facility-based physician bills a patient who is
covered by a health benefit plan, as described in Section 1456.002,
that does not have a contract with the facility-based physician,
the facility-based physician shall send a billing statement that:
(1) contains an itemized listing of the services and
supplies provided along with the dates the services and supplies
were provided;
(2) contains a conspicuous, plain-language
explanation that:
(A) the facility-based physician is not within
the health plan health delivery network; and
(B) the health benefit plan has paid the usual
and customary rate, as determined by the health benefit plan, which
is below the facility-based physician billed amount;
(3) contains a telephone number to call to discuss the
statement, provide an explanation of any acronyms, abbreviations,
and numbers used on the statement, or discuss any payment issues;
(4) contains a statement that the patient may call to
discuss alternative payment arrangements;
(5) contains a notice that the patient may file
complaints with the Texas State Board of Medical Examiners and
includes the Texas State Board of Medical Examiners mailing address
and complaint telephone number; and
(6) for billing statements that total an amount
greater than $200, over any applicable copayments or deductibles,
states, in plain language, that if the patient finalizes a payment
plan agreement within 45 days of receiving the first billing
statement and substantially complies with the agreement, the
facility-based physician may not furnish adverse information to a
consumer reporting agency regarding an amount owed by the patient
for the receipt of medical treatment for one calendar year from the
first statement date. A patient may be considered by the
facility-based physician to be out of substantial compliance with
the payment plan agreement if payments are not made in compliance
with the agreement for a period of 90 days.
Sec. 1456.006. DISCIPLINARY ACTION AND ADMINISTRATIVE
PENALTY. (a) The commissioner may take disciplinary action
against a licensee that violates this chapter, in accordance with
Chapter 84. A health care provider that violates this chapter is
subject to disciplinary action by the appropriate regulatory
agency.
(b) A violation of this chapter by a health care provider or
facility-based physician is grounds for disciplinary action and
imposition of an administrative penalty by the appropriate
regulatory agency that issued a license, certification, or
registration to the health care provider or facility-based
physician who committed the violation.
(c) The regulatory agency shall:
(1) notify a health care provider or facility-based
physician of a finding by the regulatory agency that the health care
provider or facility-based physician is violating or has violated
this chapter or a rule adopted under this chapter; and
(2) provide the health care provider or facility-based
physician with an opportunity to correct the violation.
(d) The complaints brought under this section are not
considered to require a determination of medical competency, and
therefore Section 154.058, Occupations Code, shall not apply.
Sec. 1456.007. COMMISSIONER RULES; FORM OF DISCLOSURE. The
commissioner by rule may prescribe specific requirements for the
disclosure required under Sections 1456.003 and 1456.004. The form
of the disclosure must be substantially as follows:
NOTICE
ALTHOUGH HEALTH CARE SERVICES MAY BE OR HAVE BEEN PROVIDED TO YOU AT
A HEALTH CARE FACILITY THAT IS A MEMBER OF THE PROVIDER NETWORK USED
BY YOUR HEALTH BENEFIT PLAN, OTHER PROFESSIONAL SERVICES MAY BE OR
HAVE BEEN PROVIDED AT OR THROUGH THE FACILITY BY HEALTH CARE
PROVIDERS WHO ARE NOT MEMBERS OF THAT NETWORK. YOU MAY BE
RESPONSIBLE FOR PAYMENT OF ALL OR PART OF THE FEES FOR THOSE
PROFESSIONAL SERVICES THAT ARE NOT COVERED BY YOUR HEALTH BENEFIT
PLAN.
SECTION 6. Subchapter I, Chapter 843, Insurance Code, is
amended by adding Section 843.321 to read as follows:
Sec. 843.321. STUDY OF NETWORK ADEQUACY AND CONTRACTS OF
HEALTH PLANS. (a) In this section:
(1) "Commissioner" means the commissioner of
insurance.
(2) "Health plan" means an insurance policy or a
contract or evidence of coverage issued by a health maintenance
organization or an employer or employee sponsored health plan.
(b) The commissioner shall appoint an advisory committee to
study facility-based provider network adequacy of health plans and
the health plans' ability to contract on reasonable terms with
facility-based physicians.
(c) The advisory committee shall advise the commissioner
periodically of its findings, no later than December, 2006.
(d) The advisory committee shall be composed of:
(1) at least one person affiliated with an insurance
company, licensed to write health insurance in this state;
(2) at least one person affiliated with a health
maintenance organization licensed to offer health coverage in this
state;
(3) at least one physician licensed to practice by the
Texas State Board of Medical Examiners;
(4) at least one person affiliated with a hospital
licensed in this state; and
(5) at least one member of the general public who is
not employed by or affiliated with an insurance company, health
maintenance organization, physician, or hospital. A
representative of the general public includes a person whose only
affiliation with an insurance company or health maintenance
organization is as an insured or covered person.
(e) Members of the committee serve without compensation.
SECTION 7. Section 311.002, Health and Safety Code, is
repealed.
SECTION 8. This Act applies to an insurance policy,
certificate, or contract or an evidence of coverage delivered,
issued for delivery, or renewed on or after the effective date of
this Act. A policy, certificate, or contract or evidence of
coverage delivered, issued for delivery, or renewed before the
effective date of this Act is governed by the law as it existed
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
SECTION 9. (a) The executive commissioner of the Health
and Human Services Commission and appropriate regulatory agencies
shall adopt rules necessary to implement Chapter 322, Health and
Safety Code, as added by this Act, not later than May 1, 2006.
(b) The Department of State Health Services shall develop
the common procedures lists and the consumer guide to health care as
required by Chapter 322, Health and Safety Code, as added by this
Act, not later than September 1, 2006.
SECTION 10. Notwithstanding Subchapter D, Chapter 322,
Health and Safety Code, as added by this Act, a hospital, ambulatory
surgical center, birthing center, or health care provider is not
subject to disciplinary action, a civil penalty, an administrative
penalty, or a civil action for damages for conduct that violates
Chapter 322 or a rule adopted under that chapter before January 1,
2006.
SECTION 11. This Act takes effect September 1, 2005.