83R11862 AJA-D
 
  By: Van de Putte S.B. No. 1544
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to payment of and disclosures related to certain
  ambulatory surgical center charges.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle F, Title 8, Insurance Code, is amended
  by adding Chapter 1458 to read as follows:
  CHAPTER 1458. PAYMENT OF OUT-OF-NETWORK AMBULATORY SURGICAL
  CENTER CHARGES
         Sec. 1458.001.  DEFINITIONS. In this chapter:
               (1)  "Ambulatory surgical center" means a facility
  licensed under Chapter 243, Health and Safety Code.
               (2)  "Database provider" means a database provider
  certified by the department under Section 1458.006.
               (3)  "Designated reimbursement information
  organization" means an organization designated by the commissioner
  under Section 1458.008.
               (4)  "Enrollee" means an individual who is eligible to
  receive health care services under a managed care plan.
               (5)  "Managed care plan" means a health benefit plan
  under which health care services are provided to enrollees through
  contracts with health care providers and that requires or provides
  incentives for those enrollees to use health care providers
  participating in the plan and procedures covered by the plan. The
  term includes a health benefit plan issued by:
                     (A)  a health maintenance organization;
                     (B)  a preferred provider benefit plan issuer;
                     (C)  an approved nonprofit health corporation
  that holds a certificate of authority under Chapter 844; or
                     (D)  any other entity that issues a health benefit
  plan, including:
                           (i)  an insurance company;
                           (ii)  a fraternal benefit society operating
  under Chapter 885;
                           (iii)  a stipulated premium company
  operating under Chapter 884; or
                           (iv)  a multiple employer welfare
  arrangement that holds a certificate of authority under Chapter
  846.
               (6)  "Maximum usual and customary charge," with respect
  to a service provided by an ambulatory surgical center, means the
  highest amount that the ambulatory surgical center could charge for
  the service that would be considered a usual and customary charge,
  as defined by this section.
               (7)  "Out-of-network ambulatory surgical center," with
  respect to a managed care plan, means an ambulatory surgical center
  that is not a participating provider of the plan.
               (8)  "Participating provider," with respect to a
  managed care plan, means a health care provider who has contracted
  with the managed care plan issuer to provide services to plan
  enrollees.
               (9)  "Purchaser" means an enrollee of a managed care
  plan, regardless of whether the enrollee pays any part of the
  enrollee's premium, and a sponsor of the managed care plan,
  regardless of whether the sponsor pays any part of an enrollee's
  premium.
               (10)  "Usual and customary charge" means a charge for a
  service that is not higher than the 99th percentile of the charges
  for that service reported to a database provider by ambulatory
  surgical centers in the same Medicare region or by the designated
  reimbursement information organization with respect to ambulatory
  surgical centers in the same Medicare region, computed after
  excluding:
                     (A)  charges discounted under a governmental or
  nongovernmental health benefit plan; and
                     (B)  the top and bottom 10 percent of reported
  charges for that service for the region that are not discounted
  under a health benefit plan.
         Sec. 1458.002.  APPLICABILITY OF CHAPTER. This chapter
  applies only to an issuer of a managed care plan that provides
  benefits for services provided by out-of-network ambulatory
  surgical centers.
         Sec. 1458.003.  PAYMENT OF CERTAIN OUT-OF-NETWORK
  AMBULATORY SURGICAL CENTERS. (a)  A managed care plan issuer must
  use a charge-based methodology that complies with this chapter for
  computing a payment for a service provided by an out-of-network
  ambulatory surgical center if the ambulatory surgical center
  submits a claim for payment that includes:
               (1)  a certification of the maximum usual and customary
  charge for the service determined by a database provider; or
               (2)  a certification by a database provider that there
  are not sufficient reported charges in the database provider's
  database to establish a maximum usual and customary charge for the
  service.
         (b)  If an out-of-network ambulatory surgical center submits
  a claim for payment of a charge that includes a certification from a
  database provider indicating that the billed charge is a usual and
  customary charge, the plan issuer shall pay the billed charge minus
  any portion of the charge that is the enrollee's responsibility
  under the managed care plan.
         (c)  If an out-of-network ambulatory surgical center submits
  a claim for payment of a charge that includes a certification from a
  database provider indicating that the billed charge is higher than
  the maximum usual and customary charge, the plan issuer shall pay
  the billed charge minus any portion of the charge that is the
  enrollee's responsibility under the managed care plan if the billed
  charge is justifiable considering special circumstances under
  which the services are provided. If the charge is not justifiable
  considering special circumstances under which the services are
  provided, the plan issuer shall pay the maximum usual and customary
  charge minus any portion of the charge that is the enrollee's
  responsibility under the managed care plan.
         (d)  If an out-of-network ambulatory surgical center submits
  a claim for payment of a charge that includes a certification
  described by Subsection (a)(2) with respect to a billed charge, the
  plan issuer shall pay 85 percent of the billed charge or an amount
  equal to the 99th percentile of the charges for the service reported
  by the designated reimbursement information organization for
  ambulatory surgical centers in the same Medicare region, computed
  as described by Section 1458.001(10), whichever is less, minus any
  portion of the charge that is the enrollee's responsibility under
  the managed care plan.
         Sec. 1458.004.  PROMPT PAYMENT OF USUAL AND CUSTOMARY
  CHARGE. If an out-of-network ambulatory surgical center submits to
  an issuer of a preferred provider benefit plan or health
  maintenance organization plan a claim for payment of a charge that
  includes a certification from a database provider indicating that
  the charge is a usual and customary charge or a certification
  described by Section 1458.003(a)(2) with respect to the charge and
  the claim for payment is otherwise made in accordance with
  Subchapter C, Chapter 1301, or Subchapter J, Chapter 843:
               (1)  the claim must be paid in accordance with the
  applicable subchapter as if the ambulatory surgical center were a
  preferred or participating provider, as applicable; and
               (2)  if the plan issuer fails to pay the claim in
  accordance with this section:
                     (A)  the ambulatory surgical center is entitled to
  any remedy under Chapter 843 or 1301 to which a preferred or
  participating provider, as applicable, would be entitled for the
  plan issuer's failure to pay the claim in accordance with the
  applicable subchapter; and
                     (B)  the plan issuer is subject to any penalty or
  disciplinary action under this code to which the plan issuer would
  be subject for the plan issuer's failure to pay the claim in
  accordance with the applicable subchapter.
         Sec. 1458.005.  REQUIRED CONTRACT TERMS. The language used
  in the managed care plan policy, certificate, evidence of coverage,
  or contract to describe the benefit provided under the plan for
  services provided by an out-of-network ambulatory surgical center:
               (1)  must:
                     (A)  provide that, if a certification described by
  Section 1458.003(a)(2) with respect to the charge is submitted with
  the claim, payment to an out-of-network ambulatory surgical center
  will be computed based on 85 percent of the billed charge or an
  amount equal to the 99th percentile of the charges for the service
  reported by the designated reimbursement information organization
  for ambulatory surgical centers in the same Medicare region,
  computed as described by Section 1458.001(10), whichever is less;
                     (B)  define "usual and customary charge" as that
  term is defined by Section 1458.001; and
                     (C)  incorporate into the definition of "usual and
  customary charge" the definition of "database provider" assigned by
  Section 1458.001; and
               (2)  may not add or subtract language from a definition
  required by this section.
         Sec. 1458.006.  CERTIFICATION AND QUALIFICATIONS OF
  DATABASE PROVIDER AND DATABASE. (a)  A database provider that is
  used to determine usual and customary charges for the purposes of
  this chapter must be certified by the department.  The department
  may certify a database provider under this chapter only if the
  department determines that the database provider and the database
  used by the provider for the purposes of this chapter comply with
  this section.
         (b)  A database provider must be an entity that:
               (1)  has been operating and collecting ambulatory
  surgical center out-of-network Current Procedural Terminology code
  charge data from this state for at least 10 years;
               (2)  has compiled out-of-network charges for
  ambulatory surgical centers in this state covering a period of at
  least seven years;
               (3)  maintains a database with content that complies
  with this section;
               (4)  maintains an active Internet website accessible to
  all ambulatory surgical centers subscribing to the database and to
  the public; and
               (5)  demonstrates an ability to:
                     (A)  maintain a compilation of charge data that is
  absent any data required to be excluded under Subsection (e)(1);
  and
                     (B)  distinguish charges that are not related to
  one another and eliminate irrelevant or erroneous charges from
  reported charge information.
         (c)  The database provider must compute usual and customary
  charges for services provided by ambulatory surgical centers in
  accordance with this chapter.
         (d)  The data in the database must contain out-of-network
  charges for:
               (1)  at least 350,000 out-of-network billed charges
  from ambulatory surgical centers in this state; and
               (2)  ambulatory surgical centers in each Medicare
  region in this state.
         (e)  The data in the database may not:
               (1)  include:
                     (A)  any data other than out-of-network billed
  charges of ambulatory surgical centers in this state;
                     (B)  ambulatory surgical center charges that
  reflect payments discounted under governmental or nongovernmental
  health benefit plans; or
                     (C)  information that is more than seven years
  old; or
               (2)  exclude charges accompanied by modifiers that
  indicate procedures with complications.
         (f)  An entity may not be certified as a database provider
  for the purposes of this chapter if the entity owns or controls, or
  is owned or controlled by, or is an affiliate of, any entity with a
  pecuniary interest in the application of the database.
         (g)  The Internet website required by this section must allow
  an individual to determine the maximum usual and customary charge
  for a particular service provided by an ambulatory surgical center.
         (h)  The department shall ensure that:
               (1)  the data in the database used to compute usual and
  customary charges of out-of-network ambulatory surgical centers is
  updated regularly to accurately reflect current ambulatory
  surgical center retail charges; and
               (2)  charge information that is more than seven years
  old is removed from the database.
         (i)  The department may charge a fee for certification under
  this section in an amount necessary to implement this section.
         Sec. 1458.007.  PROVISION OF USUAL AND CUSTOMARY CHARGE BY
  DATABASE PROVIDER. A database provider must compute the maximum
  usual and customary charge for each service for which a billed
  charge is submitted to the provider by an ambulatory surgical
  center that subscribes to the database and provide the ambulatory
  surgical center with a certification of the maximum usual and
  customary charge or a certification described by Section
  1458.003(a)(2), as applicable, that is sufficient to enable a
  managed care plan issuer to whom the ambulatory surgical center
  submits a claim for payment to comply with this chapter.
         Sec. 1458.008.  DESIGNATED REIMBURSEMENT INFORMATION
  ORGANIZATION. (a)  The commissioner by rule shall designate an
  organization described by this section to report charges for
  services provided by ambulatory surgical centers under this
  chapter.
         (b)  The organization designated under this section must be
  an independent, not-for-profit organization created to:
               (1)  establish and maintain a database to help managed
  care plan issuers determine reimbursement rates for out-of-network
  charges; and
               (2)  provide patients with a clear, unbiased
  explanation of the reimbursement process.
         Sec. 1458.009.  DISCLOSURES REGARDING PAYMENT OF
  OUT-OF-NETWORK AMBULATORY SURGICAL CENTER. (a)  A managed care
  plan issuer that provides benefits under the plan for services
  provided by out-of-network ambulatory surgical centers must
  include in the summary plan description and on an Internet website
  maintained by the plan issuer and disclose to a prospective
  purchaser of the plan:
               (1)  the definition of "usual and customary charge"
  assigned by Section 1458.001 and a description of how payment to an
  out-of-network ambulatory surgical center will, if applicable, be
  based on 85 percent of the billed charge or an amount equal to the
  99th percentile of the charges for the service reported by the
  designated reimbursement information organization for ambulatory
  surgical centers in the same Medicare region, computed as described
  by Section 1458.001(10), whichever is less;
               (2)  the Internet website addresses of each database
  provider certified under this chapter at which a purchaser or
  prospective purchaser may access the database or a single website
  address at which an updated set of links to the website addresses of
  those database providers may be accessed; and
               (3)  a statement that if the payment due under the
  plan's out-of-network benefit provisions is not sufficient to cover
  the total billed charge, the ambulatory surgical center agrees to
  accept as payment in full the amount paid by the plan in accordance
  with those provisions plus any portion of the charge that is the
  enrollee's responsibility under the plan.
         (b)  Disclosures under this section must:
               (1)  be made in language easily understood by
  purchasers and prospective purchasers of managed care plans;
               (2)  be made in a uniform, clearly organized manner;
               (3)  be of sufficient detail and comprehensiveness as
  to provide for full and fair disclosure; and
               (4)  be updated as necessary to ensure that the
  disclosures are accurate.
         Sec. 1458.010.  ANNUAL ACTUARIAL CERTIFICATION. (a)  A
  managed care plan issuer that offers a managed care plan that
  provides coverage for services provided by out-of-network
  ambulatory surgical centers must annually submit to the department
  a written certification stating:
               (1)  the difference in value for a purchaser between:
                     (A)  the coverage without the out-of-network
  ambulatory surgical center benefits; and
                     (B)  the coverage with the out-of-network
  ambulatory surgical center benefits; and
               (2)  that the difference between the amount a purchaser
  would be charged for the coverage without the out-of-network
  ambulatory surgical center benefits and the amount that a purchaser
  would be charged for the coverage with the out-of-network
  ambulatory surgical center benefits reflects the difference in
  value certified under Subdivision (1).
         (b)  The certification must be made in easily understood
  language, in a uniform, clearly organized manner, and be of
  sufficient detail and comprehensiveness as to provide for full and
  fair disclosure to an average consumer. The difference between the
  value of the coverage without the out-of-network ambulatory
  surgical center benefits and the coverage with the out-of-network
  ambulatory surgical center benefits must be expressed in terms of a
  percentage, although use of a percentage alone is not sufficient to
  satisfy the requirements of this section.
         (c)  The certification must be made by an actuary who is
  certified by a nationally recognized actuarial certification
  organization recognized by the commissioner and who is not
  affiliated with the managed care plan issuer or any of the plan
  issuer's affiliates.
         (d)  A managed care plan issuer must make the certification
  required by this section readily available to the public.
         Sec. 1458.011.  PAYMENT IN FULL. If the payment due under a
  managed care plan's out-of-network benefit provisions is not
  sufficient to cover the total billed charge, an ambulatory surgical
  center agrees to accept as payment in full the amount paid by the
  plan in accordance with those provisions plus any portion of the
  charge that is the enrollee's responsibility under the plan.
         Sec. 1458.012.  REMEDIES. (a)  A violation of this chapter
  by a managed care plan issuer is an unfair and deceptive act or
  practice under Chapter 541. If the department finds or it is
  otherwise determined that a managed care plan issuer violated this
  chapter, the department shall:
               (1)  take all appropriate corrective action and use any
  of the department's other enforcement powers to obtain the plan
  issuer's compliance; and
               (2)  if the violation results in an enrollee's use of an
  out-of-network ambulatory surgical center, order the plan issuer to
  pay the out-of-network ambulatory surgical center's billed charge
  as indicated on the applicable claim form.
         (b)  The remedies provided by this section are in addition to
  remedies available under Section 1458.004 or any other provision of
  this code.
         Sec. 1458.013.  ACTION BY ATTORNEY GENERAL. The attorney
  general may, independent of the department, bring an action to
  enforce this chapter.
         SECTION 2.  Subchapter A, Chapter 243, Health and Safety
  Code, is amended by adding Section 243.0105 to read as follows:
         Sec. 243.0105.  FEE SCHEDULE. (a) An ambulatory surgical
  center must maintain a current schedule of retail fees for the
  services that the center typically provides.
         (b)  Before providing an elective service to an enrollee of a
  managed care plan, as defined by Section 1458.001, Insurance Code,
  an ambulatory surgical center that is not a participating provider
  under the plan must provide the enrollee with:
               (1)  a copy of the center's most current fee schedule as
  it applies to the elective service the center expects to provide to
  the enrollee; and
               (2)  if applicable, the Internet website address for
  the database provider the center uses for the purposes of
  certification of usual and customary charges under Chapter 1458,
  Insurance Code.
         (c)  An ambulatory surgical center must disclose to any
  patient or prospective patient a copy of the center's 100 most
  commonly provided services by procedure code. The center may make
  the disclosure required by this subsection available by hard copy,
  electronically, or through an Internet website.
         SECTION 3.  Chapter 1458, Insurance Code, as added by this
  Act, applies only to charges for services provided to an enrollee
  under a managed care plan policy, certificate, or contract
  delivered, issued for delivery, or renewed on or after January 1,
  2014. Charges for services provided to an enrollee under a policy,
  certificate, or contract delivered, issued for delivery, or renewed
  before January 1, 2014, are governed by the law in effect
  immediately before the effective date of this Act, and that law is
  continued in effect for that purpose.
         SECTION 4.  This Act takes effect September 1, 2013.