81R4949 PB-F

By: Deuell S.B. No. 1396

A BILL TO BE ENTITLED

AN ACT

relating to required procedures regarding the ranking of physicians by health benefit plan issuers.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle F, Title 8, Insurance Code, is amended by adding Chapter 1460 to read as follows:

CHAPTER 1460. PHYSICIAN RANKING BY HEALTH BENEFIT PLANS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 1460.001. DEFINITIONS. In this chapter:

(1) "Hearing panel" means the physician panel described by Section 1460.056(a).

(2) "Physician" means an individual licensed to practice medicine in this state under Subtitle B, Title 3, Occupations Code.

Sec. 1460.002. APPLICABILITY. 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.

[Sections 1460.003-1460.050 reserved for expansion]

SUBCHAPTER B. RESTRICTIONS ON PHYSICIAN RANKING

Sec. 1460.051. PHYSICIAN RANKING. A health benefit plan issuer, including a subsidiary or an affiliate of the health benefit plan issuer, may not, in any manner, disseminate information to the public that compares, rates, tiers, classifies, measures, or ranks a physician's performance, efficiency, or quality of practice against objective standards or the practice of other physicians unless:

(1) the objective standards or comparison criteria used by the health benefit plan issuer are disclosed to the physician prior to the evaluation period;

(2) the data used to establish satisfaction of the objective criteria or to make the comparison are available to the physician for verification before any dissemination of information to the public; and

(3) the health benefit plan issuer provides due process to the physician as provided by this chapter.

Sec. 1460.052. INJUNCTIVE RELIEF. (a) A writ of injunction may be granted by any district court if a health benefit plan issuer disseminates, or intends to disseminate, information that compares, rates, tiers, classifies, measures, or ranks physician performance, efficiency, or quality without meeting the criteria required under Section 1460.051.

(b) An action under Subsection (a) may be brought by any affected physician or on the behalf of affected physicians.

(c) Subchapter B, Chapter 26, Civil Practice and Remedies Code, does not apply to an action brought under this chapter.

Sec. 1460.053. DUE PROCESS; NOTICE OF INTENT. (a) Before a health benefit plan issuer declines to invite a physician into a preferred tier, classifies a physician into a particular tier, or otherwise differentiates a physician from the physician's peers based on performance, efficiency, or quality, the issuer must notify the affected physician of its intent in a written notice that meets the requirements of this section.

(b) A notice of intent issued under Subsection (a) must include:

(1) a statement describing the proposed action of the health benefit plan issuer and the reasons for that proposed action;

(2) a statement that the affected physician has the right to request a hearing on the proposed action as provided by this chapter;

(3) any time limit within which the physician must request a hearing under this chapter, which may not be less than 60 days from the date on which the notice of intent is issued; and

(4) a summary of the physician's rights under Section 1460.055.

Sec. 1460.054. NOTICE OF HEARING. If a hearing is requested by a physician who receives a notice of intent under Section 1460.053, not later than the 30th day after the date on which the physician requests the hearing the physician must be given a written notice of the hearing that includes:

(1) a statement of the place, time, and date of the hearing, which must be conducted:

(A) not less than 60 days after the date the notice of the hearing is received by the physician; and

(B) not more than 90 days after the date the notice of the hearing is received by the physician; and

(2) a list of the witnesses, if any, expected to testify at the hearing on behalf of the health benefit plan issuer.

Sec. 1460.055. PHYSICIAN RIGHTS. A physician who requests a hearing under this chapter has the following rights at the hearing:

(1) the right to be represented by counsel;

(2) the right to have a record made of the proceedings and to obtain a copy of the record for a reasonable charge;

(3) the right to call, examine, and cross-examine witnesses;

(4) the right to present evidence;

(5) the right to submit a written statement to the hearing panel at the close of the hearing; and

(6) the right to receive, following the hearing, the written decision of the hearing panel, including a statement of the basis for any recommendations by the panel.

Sec. 1460.056. HEARING PANEL; CONDUCT OF HEARING. (a) A hearing requested under Section 1460.054 must be held before a panel of three physicians who practice the same medical specialty as the affected physician or a similar medical specialty.

(b) The order of presentation in the hearing shall be as follows:

(1) opening statements by the health benefit plan issuer followed by the physician or the physician's counsel;

(2) presentation of the case by the health benefit plan issuer followed by presentation of the case by the physician or the physician's counsel;

(3) rebuttal by the health benefit plan issuer followed by the physician or the physician's counsel; and

(4) closing statements by the health benefit plan issuer followed by the physician or the physician's counsel.

Sec. 1460.057. EFFECT OF NONAPPEARANCE; WAIVER. (a) The hearing panel is not precluded from proceeding with a hearing conducted under this chapter by the failure to appear at all or any part of the hearing of:

(1) the affected physician or the physician's legal counsel, if any; or

(2) any witness.

(b) Failure of a physician not represented by counsel or failure of both a physician and the physician's counsel to appear at the hearing is deemed a waiver of all procedural rights under this chapter that could have been exercised by, or on behalf of, the affected physician at the hearing.

Sec. 1460.058. EXAMINATION OF WITNESSES. Each of the following persons present at a hearing conducted under this chapter may examine or cross-examine any witness testifying at the hearing in person, telephonically, or electronically through the Internet or otherwise:

(1) the physician or, at the physician's option, the physician's counsel, but not both;

(2) the representative of the health benefit plan issuer, as designated by the issuer; and

(3) the members of the hearing panel.

Sec. 1460.059. BURDEN OF PROOF; DECISION. (a) The health benefit plan issuer must prove, by a preponderance of evidence, that:

(1) in the case of a methodology using objective standards, the affected physician's performance, efficiency, or quality and the effectiveness of the medical care delivered by the physician has not met the standards disclosed under Section 1460.051; or

(2) in the case of a methodology using relative comparison criteria, the data is accurate and correctly portrays the affected physician's performance, efficiency, or quality relative to other physicians in the same or similar medical specialty with comparable patient populations.

(b) The decision of the hearing panel is binding.

(c) If the hearing panel's decision is that the health benefit plan issuer has met its burden of proof, the health benefit plan issuer may publish the comparison, rating, tier, classification, measurement, or ranking.

(d) If the hearing panel's decision is that the health benefit plan issuer has not met its burden of proof, the panel shall instruct the health benefit plan issuer to appropriately modify the comparison, rating, tier, classification, measurement, or ranking before publication.

Sec. 1460.060. EFFECT OF CONTINUED DISAGREEMENT. (a) On written notice that the affected physician disagrees with the health benefit plan issuer's comparison, rating, tier, classification, measurement, or ranking or the decision of the hearing panel, the health benefit plan issuer shall prominently display a symbol indicating the physician disputes the comparison, rating, tier, classification, measurement, or ranking next to any comparison, rating, tier, classification, measurement, or ranking information for that physician.

(b) Each Internet web page displaying comparison, rating, tier, classification, measurement, or ranking information must contain a key explaining the meaning of the symbol required by Subsection (a).

SECTION 2. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.