| (a) Fairness requirements. A preferred provider benefit
plan is not considered unjust under Insurance Code Chapter 1701, concerning
Policy Forms, or to unfairly discriminate under Insurance Code Chapter
542, Subchapter A, concerning Unfair Claim Settlement Practices, or
Chapter 544, Subchapter B, concerning Other General Prohibitions Against
Discrimination by Insurers, or to violate Insurance Code Chapter 1451,
Subchapter A, concerning General Provisions; Subchapter B, concerning
Designation of Practitioners Under Accident and Health Insurance Policy;
or Subchapter C, concerning Selection of Practitioners, provided that:
(1) in accordance with Insurance Code §§1251.005,
concerning Payment of Benefits; 1251.006, concerning Policy May Not
Specify Service Provider; 1301.003, concerning Preferred Provider
Benefit Plans and Exclusive Provider Benefit Plans Permitted, 1301.006,
concerning Availability of and Accessibility to Health Care Services;
1301.051, concerning Designation as Preferred Provider; 1301.053,
concerning Appeal Relating to Designation as Preferred Provider; 1301.054,
concerning Notice to Practitioners of Preferred Provider Benefit Plan;
1301.055, concerning Complaint Resolution; 1301.057 - 1301.062, concerning
Termination of Participation; Expedited Review Process, Economic Profiling,
Quality Assessment, Compensation on Discounted Fee Basis, Preferred
Provider Networks, and Preferred Provider Contracts Between Insurers
and Podiatrists; 1301.064, concerning Contract Provisions Relating
to Payment of Claims; 1301.065, concerning Shifting of Insurer's Tort
Liability Prohibited; 1301.151, concerning Insured's Right to Treatment;
1301.156, concerning Payment of Claims to Insured; and 1301.201, concerning
Contracts with and Reimbursement for Nurse First Assistants, the preferred
provider benefit plan does not require that a service be rendered
by a particular hospital, physician, or practitioner;
(2) insureds are provided with direct and reasonable
access to all classes of physicians and practitioners licensed to
treat illnesses or injuries and to provide services covered by the
preferred provider benefit plan;
(3) insureds have the right to treatment and diagnostic
techniques as prescribed by a physician or other health care provider
included in the preferred provider benefit plan;
(4) insureds have the right to continuity of care as
set forth in Insurance Code §§1301.152 - 1301.154, concerning
Continuing Care in General, Continuity of Care, and Obligation for
Continuity of Care of Insurer, respectively;
(5) insureds have the right to emergency care services
as set forth in Insurance Code §1301.0053, concerning Exclusive
Provider Benefit Plans: Emergency Care; and §1301.155, concerning
Emergency Care; and §3.3708 of this title (relating to Payment
of Certain Out-of-Network Claims and Related Disclosures);
(6) the out-of-network (basic) level of coverage, excluding
a reasonable difference in deductibles, is not more than 50% less
than the higher level of coverage, except as provided under an exclusive
provider benefit plan. A reasonable difference in deductibles is determined
considering the benefits of each individual policy;
(7) the rights of an insured to exercise full freedom
of choice in the selection of a physician or provider, or in the selection
of a preferred provider under an exclusive provider benefit plan,
are not restricted by the insurer, including by requiring an insured
to select a primary care physician or provider or obtain a referral
before seeking care;
(8) if the insurer is issuing other health insurance
policies in the service area that do not provide for the use of preferred
providers, the out-of-network level of coverage of a plan that is
not an exclusive provider benefit plan is reasonably consistent with
other health insurance policies offered by the insurer that do not
provide for a different level of coverage for use of a preferred provider;
(9) any actions taken by an insurer engaged in utilization
review under a preferred provider benefit plan are taken under Insurance
Code Chapter 4201, concerning Utilization Review Agents, and Chapter
19, Subchapter R, of this title (relating to Utilization Reviews for
Health Care Provided Under a Health Benefit Plan or Health Insurance
Policy) and the insurer does not penalize an insured solely on the
basis of a failure to obtain a preauthorization;
(10) a preferred provider benefit plan that is not
an exclusive provider benefit plan may provide for a different level
of coverage for use of a nonpreferred provider if the referral is
made by a preferred provider only if full disclosure of the difference
is included in the plan and the written description as required by §3.3705(b)
of this title (relating to Nature of Communications with Insureds;
Readability, Mandatory Disclosure Requirements, and Plan Designations);
(11) both preferred provider benefits and out-of-network
level benefits are reasonably available to all insureds within a designated
service area; and
(12) if medically necessary covered services are not
reasonably available through preferred physicians or providers, insureds
have the right to receive care from a nonpreferred provider in accordance
with Insurance Code §1301.005, concerning Availability of Preferred
Providers, and §1301.0052, concerning Exclusive Provider Benefit
Plans: Referrals for Medically Necessary Services, and §3.3708
of this title, as applicable.
(b) Notwithstanding subsection (a)(11) of this section,
an exclusive provider benefit plan is not considered unjust under
Insurance Code Chapter 1701; or to unfairly discriminate under Insurance
Code Chapter 542, Subchapter A, or Chapter 544, Subchapter B; or to
violate Insurance Code Chapter 1451, Subchapter C, provided that:
(1) the exclusive provider benefit plan complies with
subsection (a)(1) - (10) and (12) of this section; and
(2) for the purposes of subsection (a)(11) of this
section, an exclusive provider benefit plan must only ensure that
preferred provider benefits are reasonably available to all insureds
within a designated service area.
(c) Payment of nonpreferred providers. Payment by the
insurer must be made for covered services of a nonpreferred provider
in the same prompt and efficient manner as to a preferred provider.
(d) Retaliatory action prohibited. An insurer is prohibited
from engaging in retaliatory action against an insured, including
cancellation of or refusal to renew a policy, because the insured
or a person acting on behalf of the insured has filed a complaint
with the department or the insurer against the insurer or a preferred
provider or has appealed a decision of the insurer.
(e) Steering and tiering. An insurer that uses steering
or a tiered network to encourage an insured to obtain a health care
service from a particular provider, as defined under Insurance Code
Chapter 1458, concerning Provider Network Contract Arrangements, must
do so in a manner that complies with the requirements of the Insurance
Code, including the fiduciary duty imposed by Insurance Code §1458.101(i),
concerning Contract Requirements, to act only for the primary benefit
of the insured or policyholder. For the purposes of this section:
(1) "steering" refers to offering incentives to encourage
enrollees to use specific providers;
(2) a "tiered network" refers to a network of preferred
providers in which an insurer assigns preferred providers to tiers
within the network that are associated with different levels of cost
sharing; and
(3) violations of the fiduciary duty under Insurance
Code §1458.101(i) will be determined by TDI based on assessment
of the insurer's conduct. Examples of conduct that would violate the
insurer's fiduciary duty include, but are not limited to:
(A) using a steering approach or a tiered network to
provide a financial incentive as an inducement to limit medically
necessary services, to encourage receipt of lower quality medically
necessary services, or in violation of state or federal law;
(B) failing to implement reasonable processes to ensure
that the preferred providers that insureds are encouraged to use within
any steering approach or tiered network are not of a materially lower
quality as compared with preferred providers that insureds are not
encouraged to use;
(C) failing to implement reasonable processes to ensure
that the insurer does not make materially false statements or representations
about a physician's or health care provider's quality of care or costs;
or
(D) failing to use objectively and verifiably accurate
and valid information as the basis of any encouragement or incentive
under this subsection.
(f) Network requirements.
(1) Each preferred provider benefit plan must include
a health care service delivery network that complies with:
(A) Insurance Code §1301.005;
(B) Insurance Code §1301.0055, concerning Network
Adequacy Standards;
Cont'd... |
