TAHU Weekly News 12.23.2019

Last week was a big week in health insurance news both locally and nationally. After going through the proposal and comment process, TDI has published its responses to the comment received and then officially adopted a version of the rules which includes several amendments, repeals of some sections, and addition of new sections to the code concerning “surprise billing” out-of-network claim dispute resolution. These changes are necessary to implement SB 1264, which was passed in the 2019 session to address surprise medical bills, creating a new hi/lo arbitration process in place of the mediation process that currently exists. The details of the new rules can be found HERE.

Second, TDI adopted a rule on the exception to the surprise billing ban using an “emergency” adoption procedure that doesn’t require advance posting. They will formally post it soon following the traditional channels which will allow for public comment and a hearing. Recall that this is the piece the Medical Board was attempting to manage but eventually pulled its proposal down after receiving criticism from multiple media outlets, the Lieutenant Governor and Governor. This rule, along with the rest of the surprise billing rules, will apply to services provided after January 1. Because this recent activity resulted in TDI not having enough time to go through the formal rule adoption process, they used the emergency process instead. Here’s a summary of what the emergency rule does (note that it can and likely will be amended and fine tuned as we go through the comment process):

• Clarifies that consumers can waive SB 1264 balance billing protections only in cases where they have a choice between an in-network provider and an out-of-network provider. The waiver can’t be used in an emergency or when an out-of-network doctor was assigned to a case, such as when an anesthesiologist is assigned to a surgery.
• Includes the form consumers must sign at least 10 business days before receiving out-of-network care if the provider wants to balance bill the consumer instead of requesting arbitration or mediation.
• Applies only to state-regulated insurance plans and people with coverage through the state employee or teacher retirement systems. Insurance cards for state-regulated plans have either “DOI” (for department of insurance) or “TDI” (Texas Department of Insurance) printed on them. (See examples.) It does not apply to large employer-sponsored health plans or Medicare.  

The actual detail of the rule can be found HERE.

The form they have adopted for use by physicians who wish to use this “narrow” exception is HERE: 

Next, the Texas Medical Board issued a notice almost immediately afterward referring physicians to the TDI rule for compliance.They noted that they have regulatory authority over physicians and will use their complaint driven enforcement procedures to ensure physicians comply with this law. Thus, if you have patients who encounter a problem, you should counsel them to file a complaint with the Medical Board to seek a remedy. TMB will also be “developing rules” to be “consistent with TDI’s rules. We will continue to follow their process.

Finally, the 5th Circuit Court of Appeals issued its opinion on the Texas vs. ACA case, holding that the mandate portion of the law is indeed unconstitutional but upholding the rest of the law and finding that it is "severable" from the mandate clause. This means that the law is still in place and compliance should continue.  But they have remanded the case back to the trial court to make specific findings on certain portions of the law that its original opinion did not address.  This is likely a technical move to be sure that the opinion is written correctly for the Supreme Court to eventually address it in a complete fashion that will not be subject to further litigation or leave any questions or key issues unanswered.  This is a very strong indicator that the 5th Circuit, and eventually the Supreme Court, will eventually invalidate the ACA's individual mandate component.  It will still take several months to a year for the case to work its way back through the process.

In recognition of the holiday season, we will not be publishing a TAHU News summary next week. We look forward to providing you with any new updates again on January 6, 2020. Happy Holidays!

Questions? Contact your TAHU lobbyists at:

Mike Meroney                                                     
Shannon Meroney
512-499-8880 (office) 
512-731-6615 (Shannon’s mobile)
Shannon@MeroneyPublicAffairs.com
512-589-2531 (Mike’s mobile)
Mike@MeroneyPublicAffairs.com