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A PREVIEW OF LEGISLATIVE PRIORITIES -
A SAMPLE OF HEALTHCARE-RELATED LEGISLATION FOR THE UPCOMING 2007 LEGISLATIVE SESSION
Although the 2007 legislative session does not begin until January 9, 2007, the prefiling of legislation has begun. On Monday, November 13, 2006, Texas senators and representatives began the process of filing legislation for consideration during the 80th Regular Session of the Texas Legislature.
In our August 30th publication of Health Industry Online, we previewed some of the healthcare-related topics that were put before the legislative committees during the interim between legislative sessions. During the interim, House and Senate committees are charged by the respective legislative bodies to study certain topics and to report their findings to the Legislature as a whole. The findings in the published reports often form the basis of proposed legislation.
Committee reports are not due until December 1st . We will provide a comprehensive report of significant healthcare proposals when the reports are published. In the meantime, however, we want to highlight some of the healthcare-related bills that have already been filed. These prefiled bills address such issues as balance billing, discount health plans, and electronic health information.
These bills in no way represent the full spectrum of healthcare issues that the Texas Legislature may address in the 2007 session. As the start of the legislative session approaches and as the session progresses, additional healthcare topics will arise. Strasburger & Price will monitor the progress of healthcare issues as they wind their way through the legislative process, and we will be happy to discuss legislative issues that may be of interest to you. In certain instances, the individual interests of clients may conflict with the positions taken by state and national groups that would normally represent the interests of our clients. In those instances, we may be able to provide assistance in advancing the client's perspective in the legislative process.
Balance Billing
Balance billing is the practice whereby a healthcare provider bills a patient for the difference between the payment the provider received from the health insurer or managed care plan and the amount of full billed charges for the provider's services. Providers who contract with health plans promise as part of their contract that they will not balance bill patients who are members in the health plan. Out-of-network providers have not made such a promise, and absent legislation prohibiting the practice, are generally free to balance bill at will.
Sometimes, it is easy for a patient to know that a healthcare provider is not in his or her health network. Sometimes, however, an out-of-network provider can provide services to a patient when the patient believes he or she is otherwise receiving services from an in-network provider. This frequently happens when the patient sees his or her own in-network physician who then refers the patient to a specialist who, unbeknownst to the patient, is out-of-network.
HB1 139 has been filed to address the issue of balance billing.2 If passed, HB 139 would amend the Texas Insurance Code to require in-network providers to provide patients with notice if the providers:
- Refer a patient to an out-of-network provider;
- Are a health care facility that has granted privileges to a physician who is an out-of-network provider and who is to provide services to the patient; or
- Otherwise arranges for healthcare services to be provided to the patient through an out-of-network provider.
The notice must disclose that the services will be provided by a provider who does not participate in the patient's health plan and that the out-of-network provider may charge the patient the balance of the provider's fee that is not fully paid or reimbursed by the health plan. The notice must also include a signature line for the patient's acknowledgement, and the provider must maintain a copy of the acknowledged notice in its records.
The notice must be provided before services are provided by the out-of-network provider. Further, the notice period must be sufficient to allow the patient to select an in-network provider to provide the healthcare services. If the notice is not provided as required, the out-of-network provider cannot charge the patient for any portion of its fee that is not paid or reimbursed by the health plan.
The only time that a healthcare provider will not be required to provide the notice is when the patient's treating physician reasonably determines that an emergency exists and there is insufficient time to provide the notice. Please note that one of the biggest issues with respect to balance billing arises when hospitals (which are universally in-network providers) contract with emergency room physicians who are out-of-network providers for at least some health plans. The out-of-network emergency room physicians bill the patient separately for the physician services received in the emergency room. Absent notice that the emergency room physician is an out-of-network provider, the patient is generally unaware of the situation until he or she receives a bill for the physician's services. It is unclear how HB 139 may be amended-or other legislation introduced-to impact this issue.
The provisions of HB 139, if enacted, will apply to healthcare services provided under a health plan that is delivered, issued for delivery, or renewed on or after January 1, 2008.
Discount Health Plans
A "discount health plan" is a non-insurance plan that provides discounts on medical, prescription, dental, or other health-related products and services. They do not qualify as insurance, do not determine or define insurance benefits, and do not include participating provider options. Instead, they are simply a product by which patients can receive discounts on healthcare services or products through providers who accept the discount plan. While a provider may agree to offer the discount to patients who are members of the discount plan, the member receives no other type of health benefit (e.g., covered services, deductible, copayment) other than the noted discount.
Since discount health plans are not insurance products, they are not currently regulated by the State of Texas. SB 55 has been filed to require discount health plans to register with the Texas Department of Insurance ("TDI") before they can offer discount benefits to the public.3 By registering with TDI, a discount health plan will not be recognized as engaging in the business of insurance. Instead, TDI will adopt rules by which the discount health plans will operate and advertise their services, including:
- A discount health plan cannot represent itself as such a plan unless it registers with TDI;
- A discount health plan cannot use false, misleading, or deceptive practices;
- A discount health plan's personnel may be required to satisfy certain continuing education requirements in order for the discount health plan to maintain its registered status;
- The discount health plan must disclose to the consumer that it is not a health insurance plan or a health maintenance organization; and<
- Unless a statement has a "verifiable and factual basis," the discount health plan may not claim that is plan offers discounts related to healthcare access, to specific provider networks, or to pharmacies.
If enacted, registration as a discount health plan will not be required before September 1, 2008.
Electronic Health Information
In the 2005 legislative session, the Texas Statewide Health Coordinating Council ("SHCC") was charged with developing a roadmap for the adoption of electronic health information ("EHI") in Texas. In late 2005, the SHCC appointed members to the Health Information Technology Advisory Committee ("HITAC"), and the HITAC met throughout 2006 and adopted its final recommendations in October.4 One of these recommendations was the creation of a statewide body to encourage and facilitate the adoption and use of EHI. To that end, SB 40 has been filed to create an Electronic Health Information Coordinating Committee ("EHICC") as part of the Texas Department of State Health Services ("TDSHS").5
Members of the EHICC will be appointed by the governor and must include physicians, patients, and representatives of hospitals, health plans, pharmacies, and clinical labs. In its work, the EHICC will have five primary objectives:
- Consult with practicing physicians to develop recommendations concerning financial incentives to increase physicians' use of electronic health records systems that meet expectations for privacy and access;
- Consult with advisory groups to explore policy changes that would increase the adoption of electronic health records systems;
- Consult with other organizations throughout Texas that are focused on the adoption of electronic health records systems;
- Serve as the Texas liaison with federal agencies concerning EHI exchanges; and
- Provide recommendations concerning the design and implementation of the EHI exchange framework for regional stakeholders, including recommendations related to technology and data standards, privacy and confidentiality, targeted policies for special-needs populations, and coordination of state agency EHI activities.
In addition to authorizing activities by EHICC, SB 40 would authorize TDSHS to issue grants to support planning and implementation of regional health information exchanges and to facilitate the development of innovative projects to adopt, promote, and use EHI. Preference for grants under this program will be given to EHI exchanges that can demonstrate financial viability and community benefits.
Finally, SB 40 provides that TDSHS will develop and adopt interoperable health information technology and health information exchange systems to permit the sharing of health information among Texas state agencies.
These three bills - HB 139, SB 55, and SB 40 - provide only a sample of the types of healthcare-related issues that may be addressed by the Texas Legislature in the upcoming session. These bills will go through the legislative process, which involves amendments and revisions, committee hearings and scheduling. It is impossible at this time to say what legislation will actually be considered by the Legislature, much less the legislation that will be enacted into law. As the process moves forward, we will momonitor the Legislature's activities and report on significant healthcare topics in future editions of the HIO.
1 Legislative bills are addressed in this article as either "HB" for House Bill or "SB" for Senate Bill.
2 HB 139 was filed by Representative Jim Jackson (R - 115th District (Dallas)).
3 SB 55 was filed by Senator Judith Zaffirini (D - 21st District (Laredo)).
4 The final HITAC roadmap can be accessed HERE in a PDF format.
5 SB 40 was filed by Senator Jane Nelson (R - 12th District (Lewisville)).
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Articles contained within this newsletter provide information on general
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