Current through Reg. 50, No. 13; March 28, 2025
(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;
(C)
Insurance Code §
1301.00553, concerning
Maximum Travel Time and Distance Standards by Preferred Provider Type, which
applies maximum travel time in minutes and maximum distance in miles for a
county based on the county's classification as specified in the network
compliance and waiver request form available at
www.tdi.texas.gov;
(D) Insurance Code §
1301.00554, concerning
Other Maximum Distance Standard Requirements; Commissioner Authority;
(E) Insurance Code §
1301.00555, concerning
Maximum Appointment Wait Time Standards, effective for a policy delivered,
issued for delivery, or renewed on or after September 1, 2025; and
(F) Insurance Code §
1301.006.
(2) An adequate network must, for
each insured residing in the service area, ensure that all insureds can access
a choice of at least two preferred providers for each physician specialty and
each class of health care provider within the time and distance standards
specified in Insurance Code §
1301.00553 and §
1301.00554.
(3) To provide a sufficient number of the
specified types of preferred providers with the specialty and diagnostic types
listed in Insurance Code §
1301.0055(b)(4),
a network must include at least two preferred physicians for each applicable
specialty and diagnostic type at each preferred hospital, ambulatory surgical
center, or freestanding emergency medical care facility that credentials the
particular specialty.
(4) For
specialty care and specialty hospitals for which time and distance standards
are not otherwise specified in Insurance Code §
1301.00553, an
adequate network must ensure that all insureds residing in the service area can
access a choice of at least two preferred providers within a distance not
greater than 75 miles.
(g) Network monitoring and corrective action.
Insurers must monitor compliance with subsection (f) of this section on an
ongoing basis, taking any needed corrective action as required to ensure that
the network is adequate. Consistent with Insurance Code §
1301.0055, an insurer
must report any material deviation from the network adequacy standards to the
department within 30 days of the date the material deviation occurred, by
submitting a network configuration filing as specified in §
3.3712 of this title (relating to
Network Configuration Filings). Unless there are no uncontracted licensed
physicians or providers within the service area to meet the standard in the
affected county, or the insurer requests a waiver, the insurer must promptly
take corrective action to ensure that the network is compliant not later than
the 90th day after the date the material deviation occurred.
(h) Service areas. For purposes of this
subchapter, a preferred provider benefit plan may have one or more contiguous
or noncontiguous service areas, but may not divide a county. Any service areas
that are smaller than statewide must be defined in terms of one or more Texas
counties.
