HBA-ATS C.S.S.B. 890 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 890 By: Harris Insurance 5/7/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE As the health care industry has evolved and moved to managed care, the delivery of health care now involves a myriad of organizational structures, from health maintenance organizations (HMOs) to medical groups, independent practice associations (IPAs), preferred provider organizations (PPOs), and integrated delivery systems, among others. These different groups within the industry have formed competitive networks of insurers, hospitals, and physician organizations in an attempt to lower costs, improve efficiency, and increase bargaining power. Within these networks, organizations contract with each other to supply different services, involving both physicians and administrators. These contracts usually involve some sharing or delegation of management, utilization review, billing, and claim payment services. When one or several organizations within the network default on their contractual obligations, as has recently occurred, or have difficulty paying for services rendered, the delivery of medical care suffers. Without state regulation, these networks may be unable to adequately serve their customers. C.S.S.B. 890 requires a health maintenance organization (HMO) that enters into a delegation agreement with a delegated network to execute a written agreement with the network. Among other requirements, the contract must contain a monitoring plan, which includes a description of financial practices that will ensure that the network tracks and reports liabilities that have been incurred but not reported, a summary of the total amount paid by the network to physicians and providers on a monthly basis, and a summary of complaints from physicians, enrollees, and providers regarding delays in payments of claims or nonpayment of claims, including the status of each complaint, on a monthly basis. The contract must also contain a provision that prohibits the network and the physicians and providers with whom it has contracted from billing or attempting to collect from an enrollee under any circumstance, including the insolvency of the HMO or network, payments for covered services other than authorized copayments and deductibles. This bill also authorizes the Texas Department of Insurance (department), upon receiving a request for intervention from an HMO, to request financial and operational documents from the network to further investigate deficiencies indicated by the monitoring plan, to conduct an on-site audit of the network if the department determines that the network is not complying with the required monitoring standards, or, upon violation of a monitoring plan, to suspend or revoke the third party administrator license or utilization review agent license of the network or a third party with which the network has contracted. In addition, this bill authorizes the department, if a network does not comply with the department's request for corrective action, to order the HMO to temporarily or permanently cease assignment of new enrollees to the network, temporarily or permanently transfer enrollees to alternative delivery systems to receive services, or modify or terminate its contract with the network. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the commissioner of insurance in SECTION 2 (Section 18C, Article 20A, V.T.I.C.) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 2, Article 20A, V.T.I.C. (Texas Health Maintenance Organization Act), by adding Subsections (dd) and (ee), to define "delegation agreement" and "delegated network." SECTION 2. Amends Chapter 20A, V.T.I.C. (Texas Health Maintenance Organization Act), by adding Section 18C, as follows: Sec. 18C. DELEGATION OF CERTAIN FUNCTIONS TO DELEGATED NETWORKS. (a) Requires a health maintenance organization (HMO) that enters into a delegation agreement with a delegated network (network) to execute a written agreement with the network. Requires the HMO to file the agreement with the Texas Department of Insurance (department) by the 30th day after the agreement is executed. Enumerates the provisions that must be included in the agreement, some of which are: _a monitoring plan, which includes a description of financial practices that will ensure that the network tracks and reports liabilities that have been incurred but not reported, a summary of the total amount paid by the network to physicians and providers on a monthly basis, and a summary of complaints from physicians, enrollees, and providers regarding delays in payments of claims or nonpayment of claims, including the status of each complaint, on a monthly basis; _a provision that prohibits the network and the physicians and providers with whom it has contracted from billing or attempting to collect from an enrollee under any circumstance, including the insolvency of the HMO or network, payments for covered services other than authorized copayments and deductibles; and _an acknowledgment and agreement by the network that the HMO is required to establish, operate, and maintain a health care delivery system, quality assurance system, provider credentialing system, and other systems and programs that meet statutory and regulatory standards, is directly accountable for compliance with those standards, and is not contractually precluded from requesting that the network provide proof of financial viability; that the role of the network and any entity with which it subcontracts in contracting with the HMO is limited to performing certain delegated functions of the HMO, using standards approved by the HMO and which are in compliance with applicable statutes and rules and subject to the HMO's oversight and monitoring of the network's performance; and that if the network fails to meet monitoring standards established to ensure that functions delegated or assigned to the network under the delegation contract are in full compliance with all statutory and regulatory requirements, the HMO may cancel delegation of any management responsibilities. (b) Requires an HMO to provide to each network with which it has a delegation agreement certain information in standard electronic format, at least monthly unless otherwise provided in the agreement. Specifies the information that must be provided. (c) Requires an HMO to provide to a network with which it has a delegation agreement risk-pool data, reported quarterly and on settlement, and the percent of premiums attributable to hospital or facility costs, if hospital or facility costs impact the network's costs, reported quarterly, and, if there are changes in hospital or facility contracts with the HMO, the projected impact of those changes on the premium attributable to hospital and facility costs within 30 days of such changes. (d) Requires an HMO that receives information through the monitoring plan required under Subsection (a) that indicates the network is not operating in accordance with its written agreement or is operating in a condition that renders the continuance of its business hazardous to the enrollees, in writing, to notify the network of those findings, and request a written explanation of the network's noncompliance with the written agreement or the existence of the condition that renders the continuance of the network's business hazardous to the enrollees. (e) Requires a network to respond to a request from an HMO under Subsection (d) in writing by the 30th day after the request is received. (f) Requires the HMO to cooperate with the network to correct any failure by the network to comply with the regulatory requirements of the department relating to any matters delegated to the network by the HMO or necessary for the HMO to ensure compliance with statutory or regulatory requirements. (g) Requires an HMO to notify the department and request intervention if the HMO does not receive a timely response from the network or the HMO receives a timely response from the network, but the HMO and network are unable to reach an agreement as to whether the network is complying with the written agreement or has corrected any problem regarding a practice that is hazardous to an HMO enrollee. (h) Authorizes the department, upon receiving a request for intervention, to request financial and operational documents from the network to further investigate deficiencies indicated by the monitoring plan, to conduct an on-site audit of the network if the department determines that the network is not complying with the monitoring standards required under Subsection (a), or, upon violation of a monitoring plan, to suspend or revoke the third party administrator license or utilization review agent license of the network or a third party with which the network has contracted. (i) Requires the department to report to the network and the HMO the results of its review by the 60th day after the department's initial request for documentation. Prohibits the department from reporting to the HMO any information regarding fee schedules, prices, cost of care, or other information not relevant to the monitoring plan. (j) Requires the network to respond to the department's report and submit a corrective plan to the department and the HMO by the 30th day after the network receives the department's report. Authorizes the network to withhold information regarding fee schedules, prices, cost of care, or other information not relevant to the monitoring plan. (k) Requires that reports and corrective plans required under Subsection (i) or (j) be treated as public documents, except health care provider fee schedules, prices, costs of care, or other irrelevant information. Requires that any information that is considered confidential by law be considered confidential (l) Authorizes the department to request that a network take corrective action to comply with the department's statutory and regulatory requirements that relate to any matters delegated by the HMO to the network or are necessary to ensure the HMO's compliance with statutory and regulatory requirements. (m) Authorizes the department, if a network does not comply with the department's request for corrective action, to order the HMO to temporarily or permanently cease assignment of new enrollees to the network, temporarily or permanently transfer enrollees to alternative delivery systems to receive services, or modify or terminate its contract with the network. (n) Requires the commissioner of insurance (commissioner) to maintain enrollee and provider complaints identifying complaints made about networks. (n) Authorizes the commissioner to adopt rules to interpret, implement, and enforce this section. (There are two subsections designated as (n) in this section.) SECTION 3. Amends Article 20A.11(b), V.T.I.C. (Texas Health Maintenance Organization Act), to include restrictions or limitations related to limited provider networks or networks within a health care plans as the types of terms and conditions in a written description of health plans that an HMO is required to accurately describe to a current or prospective group contract holder and current or prospective enrollee. Includes delineation of limited provider networks and delegated networks as the type of information needed in a current list of physicians and providers required in the written description of the health care plan provided by the HMO. SECTION 4. Effective date: September 1, 1999, except that SECTION 3 takes effect for any contract entered into or renewed on or after January 1, 2000. SECTION 5. Establishes September 2, 2001, as the expiration date for Articles 20A.02(dd) and (ee) and 20A.18C, Insurance Code, unless continued in existence by the legislature by that date. SECTION 6. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.S.B. 890 differs from the original bill in SECTION 1 by redefining the definition of "delegated network" in proposed Section 2(ee), Article 20A.02, Insurance Code, to add performance on behalf of a health maintenance organization (HMO) of any function regulated by the Texas Health Maintenance Organization Act as a function of a delegated network (network). In addition, the substitute adds the provision in the definition of "delegated network" that the term does not include an individual physician or a group of employed physicians practicing medicine under one federal tax identification number and whose total claims paid to providers not employed by the group is less than 20 percent of the total collected revenue of the group calculated on a calendar year basis. C.S.S.B. 890 differs from the original bill in SECTION 2 (proposed Section 18C(a)(1)(C), Chapter 20A, Insurance Code) by including enrollees, in addition to physicians and providers, as persons from whom a summary of complaints regarding delays in payments of claims or nonpayment of claims are summarized in the monitoring plan. In proposed Section 18C(a)(2), the substitute differs from the original by specifying that the delegation agreement (agreement) between an HMO and a network cannot be terminated without cause. In proposed Section 18C(a)(4), the substitute differs from the original by specifying that an HMO's responsibility that is prohibited from being construed as limited by an agreement includes the HMO's financial responsibility. The substitute redesignates proposed Section 18C(a)(5) of the original to Section 18C(a)(6) because it adds a new Section 18C(a)(5). In new Section 18(c)(5), the substitute includes a provision in the agreement between a network and an HMO that requires the network to comply with all statutory and regulatory requirements relating to any function, duty, responsibility, or delegation assumed by or carried out by the network. The substitute differs from the original by redesignating proposed Section 18C(a)(6) of the original to Section 18C(a)(7) and by including the following conditions to the provision in the agreement between a network and HMO that requires the network or a third party to provide a license number and to certify that the network or third party is licensed as a utilization review agent if the HMO delegates its utilization review function to the network or a third party: that enrollees will receive notification at the time of enrollment of the entity responsible for utilization review; that the network or third party performing utilization review is required to do so in accordance with Article 21.58A, Insurance Code; and that utilization review decisions made by the network or third party are required to be forwarded to the HMO on a monthly basis. The substitute differs from the original by redesignating proposed Section 18C(a)(7) of the original to Section 18C(a)(8) and by specifying that the HMO is not precluded from contractually requesting, rather than requesting, that the network provide proof of financial viability. The substitute also makes a nonsubstantive change. The substitute differs from the original by redesignating proposed Section 18C(a)(8) of the original to Section 18C(a)(9). The substitute differs from the original by redesignating proposed Section 18C(a)(9) of the original to Section 18C(a)(10) and by specifying in proposed Section 18C(a)(10)(B) that debts and claims are for medical services owed and that the dollar amount of these debts and claims is an aggregate amount. The substitute also makes a nonsubstantive change in redesignated Section 18C(a)(10)(C). In redesignated Section 18C(a)(10)(D), the substitute provides that the summary of documentation does not include information that is confidential or privileged under Section 5.06, Article 4495b, V.T.C.S., rather than information that is confidential or privileged, including that under Section 5.06, Article 4495b, V.T.C.S. The substitute differs from the original by redesignating proposed Section 18C(a)(10) of the original to Section 18C(a)(11) and by including a provision relating to enrollee complaints in the agreement between the HMO and network that requires the network to ensure that upon receipt of a complaint the network is required to report the complaint to the HMO, rather than requires the network to report a complaint to the HMO. In proposed Section 18C(b)(1), the substitute differs from the original by providing that information about the enrollees, rather than the number of enrollees, added and terminated since the previous reporting period is information that is required to be provided by the HMO to each network with which it has an agreement. In proposed Section 18C(b)(2), the substitute makes a nonsubstantive change. In proposed Sections18C(b)(3), the substitute differs from the original by specifying that the additional information a network is not precluded from receiving is nonproprietary information, rather than information, regarding certain claims. In proposed Sections18C(b)(4), the substitute makes a conforming change. In proposed Section 18C(c)(2), the substitute differs from the original by providing that an HMO is required to give quarterly to the network the percent of premiums attributable to hospital or facility costs, if hospital or facility costs impact the network's costs, and, required to give within 30 days to the network, if there are changes in hospital or facility contracts with the HMO, the projected impact of those changes on the premium attributable to hospital and facility costs. Under the original bill, the HMO was required to give to a network the rates required by the agreement and any known future facility contract rates for the HMO, if hospital or facility costs impact the network's costs, reported annually or on recontract. In proposed Section 18C(i) the substitute differs from the original by including fee schedules among the types of information the department is prohibited from reporting to the HMO. The substitute also makes nonsubstantive change. In proposed Section 18C(j) the substitute differs from the original by including fee schedules among the types of information the network is authorized to withhold. In proposed Section 18C(k), the substitute differs from the original by requiring that reports and corrective plans required under proposed Subsection (i) or (j) be treated as public documents, except health care provider fee schedules, prices, costs of care, or other irrelevant information, rather than information about prices, costs of care, or irrelevant information, and by requiring that any information that is considered confidential by law be considered confidential, rather than any information that is confidential by other law included in those reports and corrective plans be considered confidential. The substitute differs from the original bill by removing proposed Section 18C(o), which would have required the commissioner of insurance (commissioner) to adopt rules requiring networks to establish a process to allow enrollees to access physicians or health care providers who are not in the network but who are in the HMO for enrollees who have a prior relationship with a provider who is in the HMO delivery network but not in the network, and for enrollees who are past the 24th week of pregnancy or who have life threatening, serious, chronic, acute, or disabling conditions, diseases, or illnesses. The substitute differs from the original bill by redesignating Section 18C(p) of the original to Section 18C(n). In Section 18C(n) of the original, which remains Section 18C(n) in the substitute despite the redesignation of Section 18C(p) of the original to Section 18C(n), the substitute differs from the original by removing the augmentations of Section 18C as provisions that the commissioner is authorized to adopt rules for their interpretation, implementation, and enforcement. C.S.S.B. 890 differs from the original bill by redesignating SECTIONS 3 (effective date) and 4 (emergency clause) of the original to SECTIONS 4 and 6. In new SECTION 3, the substitute amends Article 20A.11(b), V.A.T.S., Insurance Code (Texas Health Maintenance Organization Act), to include restrictions or limitations related to limited provider networks or networks within a health care plans as the types of terms and conditions in a written description of health plans that an HMO is required to accurately describe to a current or prospective group contract holder and current or prospective enrollee, and to include delineation of limited provider networks and delegated networks as the type of information needed in a current list of physicians and providers required in the written description of the health care plan provided by the HMO. In redesignated SECTION 4, C.S.S.B. 890 differs from the original bill by including the provision that SECTION 3 of the substitute takes effect for any contract entered into or renewed on or after January 1, 2000, as an exception to September 1, 1999, as the effective date of this Act. In new SECTION 5, the substitute establishes September 2, 2001, as the expiration date for Articles 20A.02(dd) and (ee) and 20A.18C, Insurance Code, unless continued in existence by the legislature by that date.