KMS C.S.S.B. 386 75(R)    BILL ANALYSIS


INSURANCE
C.S.S.B. 386
By: Sibley (Smithee)
4-9-97
Committee Report (Substituted)



BACKGROUND 

Currently, Texas law prohibits the corporate practice of medicine.  This
prevents managed care organizations from being held legally accountable
when making health care treatment decisions which affect the quality of
the diagnosis, care and treatment of an enrollee of a health care plan.
This bill will require health benefit plans and managed care entities to
exercise ordinary care when making health care treatment decisions and
will hold those entities liable for damages for harm to an insured or
enrollee proximately caused by the health care entity's failure to
exercise ordinary care. 

PURPOSE

As substituted, C.S.S.B. 386 requires health benefit plans and managed
care entities to exercise ordinary care when making health care treatment
decisions and holds those entities liable for damages for harm to an
insured or enrollee proximately caused by the health care entity's failure
to exercise ordinary care. 

RULEMAKING AUTHORITY

This bill does grant additional rulemaking authority to the Insurance
Commissioner under SECTION 8 of the bill (Subchapter E, Chapter 21,
Article 21.58C).  This authority is referenced in SECTION 4 of the bill
(Article 21.58A Section 8 of Insurance Code). 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Title 4, Civil Practice and Remedies Code, by adding
Chapter 88, as follows: 
CHAPTER 88.  HEALTH CARE LIABILITY

Sec.  88.001.  DEFINITIONS.  Defines "appropriate and medically
necessary," "enrollee," "health care plan," "health care provider,"
"health care treatment decision," "health insurance carrier," "health
maintenance organization," "managed care entity," "physician," and
"ordinary care." 

Sec.  88.002.  APPLICATION.  (a) Provides that a health insurance carrier,
health maintenance organization, or other managed care entity for a health
care plan has the duty to exercise ordinary care when making health care
treatment decisions and is liable for damages for harm to an insured or
enrollee proximately caused by its failure to exercise such ordinary care. 

(b) Provides that a health insurance carrier, health maintenance
organization, or other managed care entity for a health care plan is also
liable for damages for harm to an insured or enrollee proximately caused
by the health care treatment decisions made by its employees, agents,
ostensible agents, or representatives who are acting on its behalf and
over whom it has the right to exercise influence or control, or has
actually exercised influence or control. 

(c) Provides that the standards in Subsections (a) and (b) create no
obligation on the part of the health insurance carrier, health maintenance
organization, or other managed care entity to provide to an insured or
enrollee treatment which is not covered by the health care plan of the
entity. 

(d) Prohibits a health insurance carrier, health maintenance organization,
or other managed care entity from removing a physician or health care
provider from its plan for advocating on behalf of an enrollee for
appropriate and medically necessary health care for the enrollee. 

(e)  Prohibits a health insurance carrier, health maintenance
organization, or other managed care entity from entering into a contract
with a physician, hospital, or other health care provider or
pharmaceutical company which includes an indemnification or hold harmless
clause for the acts or conduct of the health insurance carrier, health
maintenance organization, or other managed care entity.  Provides that any
such indemnification or hold harmless clause in an  existing contract is
hereby declared void. 

(f) Provides that nothing in any law of this state prohibiting a health
insurance carrier, health maintenance organization, or other managed care
entity from practicing medicine or being licensed to practice medicine may
be asserted as a defense by such health insurance carrier, health
maintenance organization, or other managed care entity in an action
brought against it pursuant to this section or any other law. 

(g) Prohibits a finding that a physician or other health care provider is
an employee, agent, ostensible agent of certain health care entities from
being based solely on proof that such person's name appears in a listing
of approved physicians or health care providers made available to insureds
or enrollees under a health care plan in an action against a health
insurance carrier, health maintenance organization, or managed care
entity. 

(h) This chapter doesn't apply to workers' compensation coverage as
defined by Section 401.011, Labor Code. 

Sec. 88.003.  LIMITATIONS ON CAUSE OF ACTION

(a)  A cause of action may not be brought against a (under this chapter)
health insurance carrier, health maintenance organization, or other manage
care entity that is required to comply with the utilization review
requirements unless the affected insured, enrollee, or representative has
exhausted the appeals and review applicable under the utilization
requirements, gives written notice of the claim, and agrees to submit to a
review by an independent review organization. 

(b)  Notice must be delivered or mailed the health insurance carrier,
health maintenance organization, or other manage care entity against whom
the action is made not later than the 30th day before the date the claim
is filed. 

(c)  Requires a claim must be submitted to a independent review
organization if the health insurance carrier, health maintenance
organization, or other manage care entity against whom the claim is made
request the review not later than the 14th day after the notice date under
Subsection (a)(2)(A).  If the health insurance carrier, health maintenance
organization, or other manage care entity does not request the review
within the period specified the affected insured, enrollee, or
representative is not required to submit the claim to independent review
before maintaining the action. 

(d)  Provides for an action to be dismissed, but permits a court to
require the parties to submit to an independent review, mediation, or
other nonbinding alternative dispute resolution which may abate the action
for a period not to exceed 30 days.  Such orders of the court shall be the
sole remedy available to a party complaining of an enrollee's failure to
comply.  Provides restrictions on use of evidence from IRO, mediation, or
alternative dispute resolution in cause of action between parties. 

(e)  Provides for lack of compliance if the enrollee has filed a pleading
alleging a harm has already occurred because of the conduct of a  health
insurance carrier, health maintenance organization, or other manage care
entity whose conduct is liable under Section 88.002(b). Establishes a
review would not be beneficial to an enrollee, unless a court by motion
finds after a  pleading was not made in good faith, and permits a court to
enter an order. 

(f)  Provides for an applicable statute of limitations to file a claim
against a managed care entity. The limitations period is tolled until the
later of the 30th day after the insured, enrollee, or representative has
exhausted the process of appeals and review or the 40th day after the date
of notice. 

(g)  This section does not prohibit an insured or enrollee from pursuing
other remedies, including injunctive relief, and  declaratory judgement if
the requirement of exhausting the appeal process and review places the
insured's or enrollee's health in serious jeopardy. 



SECTION 2. Amends Section 6, Article 21.58A, Insurance Code, by amending
Subsection (b) and adding Subsection (c) to read as follows: 

(b)  Requires written notification no later than the 30th day after the
date the utilization agent receives the appeal.  If appeal the appeal is
denied, written notification must be clear and concise statement of the
clinical basis, the specialty of the physician making the denial, and the
appealing party right's to seek a review by an independent review
organization. 

(c)  Any circumstance determined to be life-threatening condition, the
enrollee is entitled to an immediate appeal to an independent review
organization and is not required to comply with the procedures for an
internal review.  Defines "life-threatening condition". 

SECTION 3. Amends Article 21.58A, Insurance Code, by adding Section 6A to
read as     follows: 

Sec. 6A: INDEPENDENT REVIEW OF ADVERSE DETERMINATIONS

Requires a utilization review agent to permit any party appealing of an
adverse determination 
to seek review of that determination by an independent review organization
(IRO) under Article 21.58C of this code. 

 Provides for an appropriate IRO not later than the 3rd business day after
the utilization review agent receives a request for a review of any
medical records, documents used by the plan in making the determination,
written notification described by Section 6(b)(5), any supporting
information, a list of each physician or health care provider who has
provided care to the enrollee and may have relevant records, comply with
the IRO's determination with the respect to the medical necessity, and pay
for the independent review. 

SECTION 4. Amends Section 8, Article 21.58A, Insurance Code by adding
Subsection (f) to   reads as follows: 

(f)  Confidential information in the custody of a utilization review agent
may be provided to an IRO subjected to the rules and standards adopted by
the commissioner under Article 21.58C of this code. 

SECTION 5. Amends Section 9(a)(3), Texas Health Maintenance Organization
Act (Article   20A.09, Vernon's Texas Insurance Code) to read as follows: 

Requires a health maintenance organization (HMO) to provide an enrollee a
clear and understandable description of the HMO's method of resolving
complaints including the enrollee's right to appeal denials of an adverse
determination to an IRO and the procedure to make an appeal. 

SECTION 6. Amends Section 12, Texas Health Maintenance Organization Act
(Article   20A.09, Vernon's Texas Insurance Code) to read as follows: 

 Art. 20A.12. COMPLAINT SYSTEM
Requires that every health maintenance organization establish both an oral
and written complaint system.  A corrective change giving the commissioner
the ability to examine the complaint system. 

SECTION 7. Amends the Texas Health Maintenance Organization Act (Article
20A,    Vernon's Texas Insurance Code) by adding Section 12A to read as
follows: 

Sec. 12A. REVIEW OF ADVERSE DETERMINATIONS
Requires the complaint system must include an enrollee's right to appeal
an adverse determination to an IRO, procedures to appeal, an immediate
review to IRO when an enrollee has a life-threatening condition, and
applies to an HMO (Article 21.58A, Insurance Code) as if the HMO were a
utilization review agent.  Defines "adverse determination", "independent
review organization", and "life-threatening condition". 

SECTION 8.

Amends Subchapter E, Chapter 21, Insurance Code by adding Article 21.58C
to read as follows: 

ARTICLE 21.58C STANDARDS FOR INDEPENDENT REVIEW ORGANIZATIONS


Sec. 1: Defines "life-threatening condition", "payor".

Sec. 2: 

(a)  The commissioner shall promulgate standards and rules for the
certification, selection, and operation of the independent review
organizations(IRO); the suspension and revocation of certification;
annually designate each IRO which meets the standard; charge payors fees
to fund the IRO, provide ongoing oversight of the IRO to ensure
compliance. 

(b)  Establishes standards for IROs such as timely response,
confidentiality of medical records, qualifications and independence of
health care providers, and fairness of procedures. 

(c)  Requires IROs to meet specific time lines in making determinations.

(d)  An IRO must submit an certification application in a form required by
the commissioner. Provides for certification application requirements. 

(e)  Requires an IRO to annually submit information required by Subsection
(d) of this section. Requires an IRO to submit any material changes in the
information included in the application to the commissioner. 

(f)  An IRO may not be a subsidiary of a payor, trade or professional
association of payors. 

(g)  An IRO is not liable from damages arising from the determination made
by the organization. Provides an exception by an act or omission of the
IRO made in bad faith or gross negligence. 

SECTION 9.

Chapter 88, Civil Practice and Remedies Code applies only to causes of
action that accrues before the effective date of this Act.  An action that
accrues before the effective date of this Act is governed by the law
applicable to the action immediately before the effective date of this
Act. 

SECTION 10.

Sections 2-4 and 6-8 of this Act applies only to an adverse determination
of a utilization review agent or health maintenance organization made on
or after the effective date of this Act.  Sections 5-9  applies only to an
evidence of coverage that is delivered, issued for delivery, or renewed on
or after January 1, 1998. 

SECTION 11. Effective date: September 1, 1997.

SECTION 12. Emergency clause.


COMPARISON OF ORIGINAL TO SUBSTITUTE

Several sections were added to the bill:

 Added sections set limits on causes of actions including the need to
exhaust the review process as set by HMO's or other managed care entity.
If the carrier is not subject to a Utilization review process then the
limitations are not implemented.  A claim must be submitted to the HMO,
insurance carrier or other managed care entity not later than the 30th day
prior to the filing of a cause of action.  A claim must be submitted to
the Independent Review Organization (IRO) not later than the 14th day
after receipt of the notice to file a cause of action.  This can delay the
cause of action for only 30 days. 

 If an appeal is denied, notice of this determination must be provided
within 30 days after the utilization review agent receives notice of the
appeal.  The notice must be in clear and concise language and must include
basis of the denial, specialty of the reviewing physician and notice of
the right to independent review.  An enrollee may receive an immediate
independent review if the problem falls under the definition of a
"life-threatening condition" as set by definition in  SECTION 2. 

 An utilization review agent shall provide appropriate records including
medical records, documents used in making the determination and a list of
physicians or health care providers who may have information relevant to
the appeal.  The utilization review agent shall comply with the findings
of the independent review as well as pay for the review.  Confidential
information shall be provided to an independent review organization
subject to rules provided by the commissioner. 

 SECTION 7 provides for a review of adverse determinations.  The complaint
system must provide notification of an enrollee's right to appeal,
procedures for the appeal, and right to immediate review under a life
threatening situation.  Provisions of article 21.58A apply to an HMO as if
it were a utilization review agent.  Adds definition of "independent
review organization" and "life threatening condition." 

 SECTION 8 sets standards for an Independent Review Organization (IRO).
Allows the commissioner to adopt rules for certification, designation, and
oversight of IRO's. Determinations by an IRO must be done within 15 days
after receiving the necessary information to make a determination, or 20
days after receiving a request for a determination, unless the situation
involves a life threatening situation.  An IRO may not be a subsidiary of,
controlled by, a payor or trade or professional association of payors.  An
IRO is not liable for damages arising from a determination, unless the
determination is in bad faith or a result of gross negligence.