Introduction

The Texas Board of Nursing (Board) adopts new §217.23, relating to Balance Billing. The new section is adopted with changes to the proposed text published in the June 1, 2018, issue of the Texas Register (43 TexReg 3567).

Reasoned Justification. The new section is being adopted under the authority of the Insurance Code Chapter 1467 and is necessary for compliance with those statutory mandates.

Background

During the 85th Legislative Session, the Texas Legislature enacted Senate Bill (SB) 507, which amended the Insurance Code Chapter 1467, and became effective on September 1, 2107. Chapter 1467 originally applied only to facility-based physicians (those working in ambulatory surgical centers; birthing centers; hospitals, and free standing emergency medical care facilities). SB 507, however, expanded the provisions of the chapter to all health care providers, including nurses in certain circumstances.

In general, SB 507 permits certain insured individuals (enrollees) to request mandatory mediation with a facility-based or emergency care provider if the individual receives a bill exceeding $500 (after co-payments, deductibles, and co-insurance) for emergency care or a health care or medical service or supply provided by a facility-based or emergency care provider. If requested, the provider and the insurer/administrator, or their representatives, must attend and participate in the mediation. Prior to the mediation, all of the parties must participate in a mandatory informal settlement teleconference. If the matter is not resolved during the teleconference, a mediation must take place in the county where the health care services were rendered. The mediation will focus on whether the amount charged by the provider was excessive and whether the amount covered by the insurer/administrator was usual and customary or whether the amount paid was low. The mediator's fee is required to be split evenly among the provider and the insurer/administrator. Unsuccessful mediations must be referred to a special judge for a hearing in district court.

Except in the case of an emergency, and if requested by an enrollee, a health care provider subject to the chapter must also provide to the enrollee an estimate of the costs the enrollee will be responsible for paying. This estimate must be provided before any health care services are rendered. If the provider obtains the individual's written acknowledgment of the estimated costs, the provider cannot be required to participate in mediation, so long as the billed amount is lower than or equal to the amount quoted in the estimate.

Further, Chapter 1467 requires providers to include in their billing statements notice of the opportunity for mandatory mediation. Once a provider has been informed of a mediation request, the provider may not seek collection activities against the insured individual while the claim is pending resolution. Chapter 1467 also requires the imposition of an administrative penalty on providers who are found to have participated in mediation in bad faith.

The proposed new section is necessary to implement the requirements of Chapter 1467 and to provide notice to the Board's licensees of their responsibilities under the chapter.

Changes to the Adopted Text. The Board received two written comments on the proposal. These comments were considered by the Board at its July 2018 meeting. In response to the written comments on the published proposal, the Board has made changes to the title of the section and subsections (b), (c), and (d)(2). None of these changes, however, materially alter issues raised in the proposal, introduce new subject matter, or affect persons other than those previously on notice. Further, the Board believes these changes address the majority of the commenters' concerns.

How the Sections Will Function.

Adopted §217.23(a) identifies the purpose of the new section, which is to implement the requirements of Chapter 1467 and to notify licensees of their responsibilities under that chapter.

Proposed new §217.23(b) clarifies that the new section only applies to a facility-based or emergency care provider, as those terms are defined in §1467.001, who bills an enrollee covered by a preferred provider benefit plan offered by an insurer under the Insurance Code Chapter 1301 or a health benefit plan, other than a health maintenance organization plan, under the Insurance Code Chapters 1551, 1575, or 1579, for out-of-network emergency care or health care or medical service or supply provided on or after January 1, 2018. Further, the subsection clarifies that the rule only applies to facility-based providers and emergency care providers that are subject to the Board's jurisdiction.

Proposed new §217.23(c) sets forth the specific responsibilities of a licensee subject to the section's requirements. Proposed new §217.23(c)(1) prescribes the licensee's responsibilities related to a mediation under Chapter 1467.

First, an enrollee, as that term is defined in §1467.001(3), may request mediation of a settlement of an out-of-network health benefit claim if: (i) the amount for which the enrollee is responsible to a facility-based or emergency care provider, after co-payments, deductibles, and co-insurance, including the amount unpaid by the administrator or insurer, is greater than $500; and (ii) the health benefit claim is for emergency care or a health care or medical service or supply provided by a facility-based provider in a facility that is a preferred provider or that has a contract with the administrator.

Second, if an enrollee requests mediation under Chapter 1467, the facility-based or emergency care provider, or their representative, must participate in good faith in the mediation.

Third, prior to participation in a mediation, all parties, including the facility-based or emergency care provider, or their representative, must participate in an informal settlement teleconference not later than the 30th day after the date on which the enrollee submits the request for mediation. If the informal settlement teleconference is unsuccessful in resolving the matter, a mediation must be conducted in the county in which the health care or medical services were rendered.

Fourth, in a mediation under Chapter 1467, the parties must evaluate: (i) whether the amount charged by the facility-based or emergency care provider for the health care or medical service or supply is excessive; (ii) whether the amount paid by the insurer or administrator represents the usual and customary rate for the health care or medical service or supply or is unreasonably low; and (iii) as a result of those amounts, the amount, after co-payments, deductibles, and co-insurance are applied, for which the enrollee is responsible to the facility-based or emergency care provider.

Fifth, the fees of a mediation under Chapter 1467 are required to be borne equally between the facility-based or emergency care provider and the insurer or administrator.

Sixth, in the event a mediation is unsuccessful, the matter must be referred to a special judge for resolution, as set forth in §1467.057.

Finally, a facility-based provider will not be required to participate in mediation to mediate a billed charge if, prior to providing a health care service or supply, the facility-based provider makes a written disclosure, as described further in paragraph (2) of subsection (c), and obtains the enrollee's written acknowledgment of that disclosure, so long as the billed amount is less than or equal to the maximum amount projected in the disclosure.

Proposed new §217.23(c)(2) sets forth a licensee's responsibilities with regard to billing notices.

First, except in the case of an emergency, and if requested by an enrollee, a facility-based provider must provide a complete disclosure to the enrollee, prior to providing the health care or medical service or supply, that: (i) explains that the facility-based provider does not have a contract with the enrollee's health benefit plan; (ii) discloses projected amounts for which the enrollee may be responsible; and (iii) discloses the circumstances under which the enrollee would be responsible for those amounts.

Second, a facility-based or emergency care provider must include a conspicuous, plain-language explanation of the mediation process available under Chapter 1467, as set forth in §1467.0511, in a bill sent to each enrollee by the facility-based or emergency care provider for an out-of-network health benefit claim (balance bill) eligible for mediation under Chapter 1467.

Proposed new §217.23(c)(3) sets forth a licensee's responsibilities with regard to collection notices.

On receipt of notice from the Texas Department of Insurance that an enrollee has made a request for mediation meeting the requirements of Chapter 1467, the facility-based or emergency care provider may not pursue any collection efforts against the enrollee for amounts other than co-payments, deductibles, and co-insurance, before the earlier of: (i) the date the mediation is completed; or (ii) the date the request to mediate is withdrawn.

Proposed new §217.23(d) addresses complaint investigation and resolution. First, except for good cause shown, and in compliance with §1467.102, on a report of a mediator and appropriate proof of bad faith mediation, the Board is required to impose an administrative penalty. As set forth in §1467.101, the following conduct constitutes bad faith mediation: (i) failing to participate in the mediation, if participation in the mediation was required; (ii) failing to provide information the mediator believes is necessary to facilitate an agreement; or (iii) failing to designate a representative participating in the mediation with full authority to enter into any mediated agreement. Failure to reach an agreement is not conclusive proof of bad faith mediation.

Second, a complaint may be filed with the Board by a mediator against a licensee or by an enrollee who is not satisfied with a mediated agreement. Complaints that do not involve delayed health care or medical care shall be assigned a Priority 4 status, as described in §213.13 of this title (relating to Complaint Investigation and Disposition). After investigation, if the Board determines that a licensee has engaged in improper billing practices or has committed a violation of the Nursing Practice Act, Chapter 1467, or other applicable law, the Board will impose appropriate disciplinary action.

Summary of Comments Received

General Comments

Summary of Comment: A commenter representing the APRN Alliance suggests adding a provision notifying licensees that, by law, they are not subject to discipline for failing to disclose the amount for which the enrollee may be responsible prior to providing the service, nor for failing to include a conspicuous explanation of the mediation process in a bill. The commenter states that, while the APRN Alliance agrees that licensees should provide this information, they should not fear discipline if they fail to do so.

A commenter representing the Texas Medical Association states that the Board's rules are silent as to the consequences of a licensee's failure to comply with required disclosures, which stands in stark contrast to the Insurance Code §1467.151(d), which clearly indicates that any failure to provide the required disclosures is not subject to discipline by the appropriate regulatory agency. The commenter suggests adding a statement to the rule that specifies that a licensee is not subject to discipline for failure to provide the required disclosures.

Agency Response: The Board declines to make these suggested changes. A licensee is required under the Insurance Code §1467.051(c), if requested by an enrollee, to provide a complete disclosure to the enrollee before providing a health care or medical service or supply, as specified in that statutory subsection. Further, §1467.0511(a) requires all bills for out-of-network health benefit claims eligible for mediation sent to enrollees by a facility-based provider or emergency care provider to contain a conspicuous explanation of the mediation process, as specified in that statutory subsection. Nonetheless, the Board recognizes §1467.151(d), which precludes disciplinary action based upon a licensee's failure to provide a disclosure under §1467.051 or §1467.0511. No provision of the rule runs contrary to that statutory provision or implies otherwise. The Board, however, does not find it necessary to repeat the statutory prohibition in the rule.

Summary of Comment: A commenter representing the APRN Alliance suggests clarifying that licensees may send a representative to an informal settlement conference and mediation. The commenter cites to the statutory definition of "party" in §1467.001(7) to support this suggestion. The commenter states that the rule text as proposed may raise questions as to whether the rule requires more than the law requires.

A commenter representing the Texas Medical Association points out that the statute permits a provider's representative to participate in mediation. The commenter recommends that the rule be amended for consistency with this provision.

Agency Response: The Board agrees that Chapter 1467 allows a representative to attend an informal settlement conference or mediation on the licensee's behalf and has added clarifying language to subsection (c) of the rule text as adopted.

Summary of Comment: A commenter representing the Texas Medical Association recommends changing the title of the new section to read "Out-of-Network Health Benefit Claim Dispute Resolution". The commenter states that the suggested title better describes the subject matter of the rule section and will help avoid confusion by members of the regulated community and lay persons. The commenter also states that this change would be more consistent with the manner in which the Texas Medical Board has historically identified its rules implementing the Insurance Code Chapter 1467.

Agency Response: The Board agrees that the subject matter of the section relates to out-of-network claim dispute resolution, also known as "balance billing", and has, therefore, changed the title as adopted to "Balance Billing Dispute Resolution". The Board does not agree that the phrase "balance billing" is confusing or misrepresents the context of the section or the intent of the Insurance Code Chapter 1467. To the contrary, the Board believes this phrase will be easier for enrollees, licensees, and the general public to understand. As such, the Board declines to make further changes to the section's title.

Summary of Comment: A commenter representing the Texas Medical Association recommends including definitions in the rule for the terms that are defined in the Insurance Code Chapter 1467 and also appear in the rule.

Agency Response: The Board agrees and has added the commenter's suggested language to the rule as adopted.

§217.23(a). Purpose.

Summary of Comment: A commenter representing the Texas Medical Association notes that the term "licensee" is not defined in the new section or Chapter 217 of the Board's rules. The commenter suggests, in the interest of clarity, that the Board include a specific definition of the term "licensee" in the rule.

Agency Response: The Board declines to make this change. The Board does not believe the term is confusing within the context of the section, and the Board acknowledges it only has jurisdiction over its own licensees.

§217.23(b). Applicability.

Summary of Comment: A commenter representing the APRN Alliance states that it would be helpful if the Board included the types of coverage that the rule applies to in the applicability section. The commenter states that the balance billing law applies to coverage issued by an insurer as a preferred provider benefit plan or administered by an administrator of a health benefit plan, other than a health maintenance organization plan. The commenter further states that the provisions of the rule do not apply to all health benefit plan enrollees, and providing a clear and accurate applicability section will help licensees understand their responsibilities under the rule.

Agency Response: The Board agrees and has added clarifying language to subsection (b) of the rule text as adopted.

Summary of Comment: A commenter representing the Texas Medical Association states that the use of the phrase any "facility-based provider" and "emergency care provider" in the subsection could be interpreted to include physicians, as well as nurses. The commenter re-iterates that the Board does not have jurisdiction over physicians and objects to any rule that imposes any requirement on or otherwise regulates any physician. The commenter suggests clarifying that the rule only applies to a Board licensee that is also a "facility-based provider" or "emergency care provider", as those terms are defined in the Insurance Code §1467.001.

Agency Response: The Board agrees in part and disagrees in part. Because the Board only has jurisdiction over its own licensees, an interpretation of this subsection that seeks to expand that jurisdiction is unlikely and without merit. Nevertheless, the Board has added language to the subsection as adopted to clarify that the section only applies to individuals over which the Board has jurisdiction.

§217.23(c)(1). Mediation.

Summary of Comment: A commenter representing the Texas Medical Association states that subsection (c)(1) of the rule text is unnecessarily duplicative of the statutory language in the Insurance Code Chapter 1467. Further, the commenter states that the Texas Medical Board has not historically repeated the basic requirements for mediation in its rules, and instead, has focused on the physician's responsibilities with regard to disclosures/billing notices and complaints (e.g., bad faith mediation and improper billing). The commenter recommends that the language in (c)(1) be stricken in its entirety.

Agency Response: The Board declines to make this change. The Board believes it is important to re-iterate in its own rules a licensee's primary obligations under the Insurance Code Chapter 1467 in an easily comprehensible manner.

§217.23(c)(1)(A).

Summary of Comment: A commenter representing the Texas Medical Association recommends that, if the Board retains subsection (c)(1), that the Board separate the provisions of (c)(1)(A)(ii). The commenter contends that separating the clause into two subclauses will aid the regulated community in understanding which claims are eligible for mediation and will ensure that the rule language more closely tracks the statute.

Agency Response: The Board agrees and has amended the text as adopted in subsection(c)(1)(A)(ii) accordingly.

§217.23(c)(1)(B).