Section 3.3317. The adoption updates a statutory citation to reflect the nonsubstantive recodification of the Insurance Code.

Section 3.3318. The adoption repeals current §3.3318. Amendments to §3.3302(b) incorporate provisions similar to some of the provisions repealed in §3.3318, as previously described.

Section 3.3323. The adoption corrects a citation to include the full name of a section title and updates a statutory citation to reflect the nonsubstantive recodification of the Insurance Code.

Section 3.3324. The adoption deletes outdated language about enrollment before 1997. The adoption also updates an Administrative Code citation in subsection (d), consistent with adopted §3.3306.

The Commissioner also adopts the proposed amendments to 28 TAC §§3.3302 - 3.3308, 3.3312, 3.3316, 3.3317, and 3.3323 - 3.3325 to update outdated contact information and administrative and statutory citations, and to make other nonsubstantive editorial and formatting changes for consistency with current agency style.

This adoption includes provisions related to NAIC model rules, regulations, directives, or standards, and the department must consider whether authority exists to enforce or adopt NAIC model rules, regulations, directives, or standards under Insurance Code §36.004 and §36.007. The department has determined that Insurance Code §36.004 and §36.007 do not prohibit the adopted amendments because Insurance Code §1652.005 provides that, in addition to other rules required or authorized by Chapter 1652, the Commissioner must adopt reasonable rules necessary and proper to carry out Chapter 1652. These rules include those adopted in accordance with federal law relating to the regulation of Medicare supplement benefit plan coverage that are necessary for Texas to retain certification as a state with an approved regulatory program for Medicare supplement insurance.

SUMMARY OF COMMENTS AND AGENCY RESPONSE.

Commenters: The department received one written set of comments and no oral comments. UnitedHealthcare is in support of the proposal with changes. The department did not receive comments against the proposal.

Comment on §3.3306(b)(1)(E)(vi). The commenter supports adding §3.3306(b)(1)(E)(vi) to allow group Medicare supplement certificates to be replaced for Texas residents who move to another state.

Agency Response to Comment on §3.3306(b)(1)(E)(vi). The department appreciates the supportive comment.

Comment on §3.3306(c)(1)(B). The commenter suggests moving the proposed phrase in §3.3306(c)(1)(B)(ii) that states, "who first became eligible for Medicare before January 1, 2020," to the main body of the text in §3.3306(c)(1)(B) to clarify that the requirement as provided in §3.3306(c)(1)(B) applies to both Plans C and F.

Agency Response to Comment on §3.3306(c)(1)(B). The department agrees and has made the suggested change.

Comment on §3.3306(c)(5)(H). The commenter states that the Part B deductible is not an expense that would ordinarily be paid by Plan G, and because of this the commenter recommends adding language from Section 9.2(A)(4) of the NAIC Model to §3.3306(c)(5)(H) to read: "Plan G With High Deductible shall provide the benefits contained in subsection §3.3306(c)(5)(F) but shall not provide coverage for 100% or any portion of the Medicare Part B deductible; provided further, that the Medicare Part B deductible paid by the beneficiary shall be considered an out-of-pocket expense in meeting the annual high deductible."

Agency Response to Comment on §3.3306(c)(5)(H). The department agrees with changing the language to clarify that the Part B deductible is not an expense that would ordinarily be paid by Plan G. However, the department does not agree with all of the suggested language. The department added language to make the following clarification by stating: "Standardized Medicare supplement Plan G with High Deductible must include 100 percent of the covered expenses following the payment of the annual deductible set forth in clause (ii) of this subparagraph, but will not provide coverage for any portion of the Medicare Part B deductible. The Medicare Part B deductible paid by the beneficiary will be considered an out-of-pocket expense in meeting the annual high cost deductible."

Comment on §3.3308(c)(2)(E). The commenter states that proposed §3.3308(c)(2)(E) requires insurers to use the December 2017 revision of the outline of coverage form no later than July 1, 2018. The commenter suggests a July 1, 2019, effective date to use the new outline of coverage form to more closely align with the January 1, 2020, plan changes.

Agency Response to Comment on §3.3308(c)(2)(E). The department agrees that use of the revised outline of coverage form should be more closely aligned with the January 1, 2020, plan changes. The department has changed §3.3308(c)(2)(E) to require use of the revised outline of coverage form to no later than July 1, 2019.

Comments on Figure §3.3308(c)(2)(E). The commenter suggests changes in the Benefit Chart of Medicare Supplement Plans Sold on or after June 1, 2020. The commenter states that the column heading for Plans C and F omitted the word "only" and should instead read "Medicare first eligible before 2020 only."

Agency Response to Comment on Figure §3.3308(c)(2)(E). The department agrees and has made the change.

Comments on Figure §3.3308(c)(2)(E). The commenter suggests additional changes in the Benefit Chart of Medicare Supplement Plans Sold on or after June 1, 2020. The commenter states that Plans A and B should not have a checkmark for skilled nursing facility coinsurance, as these plans do not provide this benefit. The commenter states that Plan A should not have a checkmark for the Medicare A deductible because Plan A does not provide this benefit.

Agency Response to Comment on Figure §3.3308(c)(2)(E). The department agrees and has made the changes.

Comments on Figure §3.3308(c)(2)(E). The commenter suggests replacing language that appears in the summary portion about Plan G or High Deductible Plan G for Part A and Part B with the wording used in the NAIC Model, because the Part B deductible is not an expense that would ordinarily be paid by Plan G.

Agency Response to Comment on Figure §3.3308(c)(2)(E). The department agrees and has made the changes. The language now states that "out-of-pocket expenses for this deductible include expenses for the Medicare Part B deductible, and expenses that would ordinarily be paid by the policy. This does not include the plan's separate foreign travel emergency deductible."

Comments on Figure §3.3308(c)(2)(E). The commenter suggests changes in the PLAN G or HIGH DEDUCTIBLE Plan G chart. The commenter states that the column headings for home health care and foreign travel should be consistent with other benefits for Plan G and read "MEDICARE PAYS, [AFTER YOU PAY $[2,240] DEDUCTIBLE, **] PLAN PAYS, and [IN ADDITION TO [2,240] DEDUCTIBLE, **] YOU PAY.

Agency Response to Comment on Figure §3.3308(c)(2)(E). The department agrees and has made the changes.

STATUTORY AUTHORITY. The Commissioner adopts the amendments to 28 TAC §§3.3302 - 3.3308, 3.3312, 3.3316, 3.3317, and 3.3323 - 3.3325 under Insurance Code §§1652.005, 1652.051, 1652.052, 1652.102, 1652.151, 1652.152, and 36.001; and 42 U.S.C. §1395ss.

Insurance Code §1652.005 provides that, in addition to other rules required or authorized by Chapter 1652, the Commissioner must adopt reasonable rules necessary and proper to carry out Chapter 1652, including rules adopted in accordance with federal law relating to the regulation of Medicare supplement benefit plan coverage that are necessary for Texas to obtain or retain certification as a state with an approved regulatory program.

Insurance Code §1652.051 provides, in part, that the Commissioner must adopt reasonable rules to establish specific standards for provisions in Medicare supplement benefit plans and standards for facilitating comparisons of different Medicare supplement benefit plans. The standards are in addition to and must be in accordance with applicable laws of Texas; applicable federal law, rules, regulations, and standards; and any model rules and regulations required by federal law, including 42 U.S.C. §1395ss. The standards may include provisions relating to terms of renewability; benefit limitations, exceptions, and reductions; and exclusions required by state or federal law.

Insurance Code §1652.052(a) provides that the Commissioner must adopt reasonable rules to establish minimum standards for benefits and claim payments under Medicare supplement benefit plans. Insurance Code §1652.052(b) states that the standards for benefits and claim payments must include the requirements for certification of Medicare supplement benefit plans under 42 U.S.C. §1395ss.

Insurance Code §1652.102(c) provides that the Commissioner may adopt rules relating to filing requirements for rates, rating schedules, and loss ratios.

Insurance Code §1652.151 provides, in part, that the rules adopted under §1652.152 must include provisions and requirements that are at least equal to those required by federal law, including the rules, regulations, and standards adopted under 42 U.S.C. §1395ss.

Insurance Code §1652.152(a) provides that for full and fair disclosure in the sale of Medicare supplement benefit plans, a Medicare supplement benefit plan or certificate may not be delivered or issued for delivery in Texas unless an outline of coverage that complies with §1652.152 is delivered to the applicant when the applicant applies for the coverage. Insurance Code §1652.152(b) provides that the Commissioner by rule must prescribe the format and content of the outline of coverage required by §1652.152(a). The rules must address the style, arrangement, and overall appearance of the outline of coverage, including the size, color, and prominence of type and the arrangement of text and captions.

Insurance Code §36.001 provides that the Commissioner may adopt any rules necessary and appropriate to implement the powers and duties of the department under the Insurance Code and other laws of Texas.

Title 42 U.S.C. §1395ss(a)(2)(A) provides, in part, that no Medicare supplemental policy may be issued in a state on or after the date specified, unless the state's regulatory program provides for the application and enforcement of the NAIC Model Standards and requirements.