Summary of Comment: A commenter representing the Texas Medical Association states that the Board imposes a "good faith" standard on mediation participants that is not found in the statute. The commenter further states that this addition is unnecessary because subsection (d)(1) of the rule proposal specifically addresses bad faith mediation by tracking the statute's language. The commenter recommends deleting (c)(1) in its entirety or striking the term "good faith" from (c)(1)(B).

Agency Response: The Board agrees and has removed the phrase "good faith" from the rule text as adopted.

§217.23(c)(1)(D).

Summary of Comment: A commenter representing the Texas Medical Association recommends stylistic changes to the subparagraph. The commenter recommends adding "as a result of the amounts described by clause (i), determine the" at the beginning of clause (ii) of the subparagraph. The commenter also suggests adding statutory language regarding the goal of mediation found in the Insurance Code §1467.056(d).

Agency Response: The Board agrees in part and disagrees in part. The Board agrees that the rule text could more closely track the statutory language in §1467.056(a) and has made changes to the rule text as adopted accordingly. The Board declines to include the additional language suggested by the commenter. This language is not necessary and does not address any additional licensee responsibility or obligation.

§217.23(c)(1)(E).

Summary of Comment: A commenter representing the Texas Medical Association suggests that the rule text be changed to reflect that the mediator's fees (and not any other costs associated with mediation) are to be split evenly and paid by the insurer or administrator and the facility-based provider or emergency care provider.

Agency Response: The Board agrees and has changed the text of the rule as adopted accordingly.

§217.23(c)(1)(F).

Summary of Comment: A commenter representing the Texas Medical Association suggests that the phrase "for resolution" be struck from the rule text to more closely track the statutory language.

Agency Response: The Board agrees and has changed the text of the rule as adopted accordingly.

§217.23(c)(1)(G).

Summary of Comment: A commenter representing the Texas Medical Association suggests that the phrase "participate in mediation to" be stricken from the subparagraph and the phrase "under the Insurance Code Chapter 1467" be added to the subparagraph.

Agency Response: The Board declines to make this change. The purpose of the section is to implement the requirements of the Insurance Code Chapter 1467 and notify licensees of their responsibilities under that chapter. It is clear that the requirements of the section regarding a mediation apply in that context.

§217.23(c)(2)(A)

Summary of Comment: A commenter representing the Texas Medical Association suggests adding the phrase "out-of-network" before "facility-based provider". The commenter states that only out-of-network facility-based providers should be required to meet the disclosure obligation, since the first element of the disclosure obligation is a requirement to explain that the provider does not have a contract with the enrollee's health benefit plan.

Agency Response: The Board agrees and has amended the rule text as adopted accordingly.

§217.23(c)(2)(B)

Summary of Comment: A commenter representing the Texas Medical Association states that the rule contains overly broad language in that it would require a facility-based or emergency-care provider to include the explanation on any bill sent to an enrollee, and would not be limited to out-of-network bills subject to mediation under the Insurance Code Chapter 1467, and would even apply to in-network bills. The commenter recommends that the Board narrow the scope of the requirement by including reference to an "out-of-network health benefit claim eligible for mediation under Insurance Code Chapter 1467" in the rule text.

Agency Response: The Board agrees that additional clarification is needed in this subparagraph and has amended the rule text as adopted accordingly.

§217.23(c)(3)

Summary of Comment: A commenter representing the Texas Medical Association suggests that the rule be modified to clarify that the mediation request must meet the requirements of the Insurance Code Chapter 1467 in order to trigger the responsibility not to pursue collection efforts.

Agency Response: The Board agrees that the suggested change tracks the statutory language and has made the changes to the rule text as adopted accordingly.

§217.23(d)(2).

Summary of Comment: A commenter representing the APRN Alliance suggests modifying the language of the rule to read "improper billing practices that violate the Nursing Practice Act" instead of "improper billing practices or has committed a violation of the Nursing Practice Act". The commenter states that the proposed language implies that the Board's investigation of an improper billing complaint will extend to unrelated practice violations.

Agency Response: The Board declines to make the change. If a licensee's conduct constitutes a violation of the Nursing Practice Act, Chapter 1467, or other applicable law, such as the Health and Safety Code §311.0025, the Board is authorized to review that conduct and take appropriate disciplinary action. A licensee's conduct may only implicate a singular statute or rule, but it may also implicate more than one. In such event, the Board retains authority to review the conduct pursuant to all applicable standards.

Summary of Comment: A commenter representing the Texas Medical Association suggests that the paragraph include language that denotes that a complaint made by a mediator must concern bad faith mediation. Further, the commenter suggests adding language regarding improper billing practices under the Health and Safety Code §311.0025, in that the Board shall not open investigations relating to complaints of a single instance of improper billing, but shall open investigations on facility-based or emergency care providers who are alleged to have engaged in improper billing in multiple instances. The commenter adds that this addition would better align with The Texas Medical Board's historic interpretation of the same statutory provisions.

Agency Response: The Board agrees in part and disagrees in part. The Board agrees with the suggestion of the commenter to include language that denotes "bad faith mediation" and has made the change to the adopted rule text accordingly. However, the Board declines to include the additional suggested language regarding improper billing practice under the Health and Safety Code §311.0025. The Board retains authority to investigate a licensee's conduct and take disciplinary action where such conduct violates statutory standards or Board rules. This includes instances of improper billing practices. However, the Board is bound by statutory prohibitions such as those found in §311.025 and would not initiate disciplinary action based upon such conduct. The Board does not find it necessary to re-iterate those statutory prohibitions in the rule as adopted.

Names of Those Commenting For and Against the Proposal.

For: None.

Against: None.

For, with changes: The APRN Alliance; The Texas Medical Association.

Neither for nor against, with changes: None.

Statutory Authority. The new section is adopted under the authority of the Insurance Code §1467.003 and the Occupations Code §301.151.

Section 1467.003 authorizes the Board to adopt rules as necessary to implement its respective powers and duties under that chapter.

Section 301.151 addresses the Board's rulemaking authority. Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders under Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.