Texas Medical Board Press Release
FOR IMMEDIATE RELEASE
November 27, 2019
TMB Statement on Senate Bill 1264 Rulemaking
The Texas Medical Board's (TMB) mission is to protect the people of Texas through the regulation of medicine. The TMB Board Members and staff take this mission very seriously. Part of protecting the public is implementing TMB rules as required by Senate Bill (SB) 1264.
SB 1264 created new law generally prohibiting surprise medical billing by out-of-network (OON) physicians or providers. However, SB 1264 specifically exempts nonemergency health care or medical services from the prohibition on surprise medical billing if certain requirements are met. SB 1264 allows balance billing in Texas Insurance Code Sec. 1271.157 (d), Sec. 1271.158 (d), Sec. 1301.164 (d), Sec. 1301.165 (d), Sec. 1551.229 (d), Sec. 1551.230 (d), Sec. 1575.172 (d), Sec. 1575.173 (d), Sec. 1579.110 (d), and Sec. 1579.111 (d).
Those sections allow balance billing in nonemergency health care or medical service if:
1.) the enrollee (patient) elects to receive in writing in advance of the service with respect to each non-network physician or provider providing the service,
2.) the non-network physician or provider, before providing the service, provides a complete written disclosure to the enrollee (patient) that
A.) explains that the physician or provider does not have a contract with the enrollee's (patient's) health benefit plan,
B.) discloses projected amounts for which the enrollee (patient) may be responsible, and
C.) discloses the circumstances under which the enrollee (patient) would be responsible for those amounts.
There are no additional limitations, including how often this may occur in Texas, in the language of the bill to prevent OON physicians or providers from balance billing enrollees (patients) for nonemergency health care or medical services.
Section 1467.003 gives the Texas Department of Insurance, the Texas Medical Board (TMB), and any other appropriate regulatory agency authority to adopt rules as necessary to implement their respective powers and duties under that chapter.
The TMB is using this rule making authority to strengthen the protections against balance billing for nonemergency health care or medical services. The TMB's proposed rule, in addition to the requirements already included in statute, would require a mandatory "cooling off" period to give enrollees (patients) enough time to consider their options, establishes timelines for the notice and disclosure to enrollees (patients) before scheduling services, and creates a standardized mandatory form to be used in these instances. These are all additional protections for enrollees (patients) not included in the bill language but determined critical by TMB in fulfilling our mission.
The TMB would not require these balance billing requirements and standardized form to be used by OON physicians or providers in all instances. These statutes and the rule would only apply to OON physicians or providers who want to collect from enrollees (patients) a higher fee than what insurance will pay them. Here are some examples:
1.) If the OON physician or provider is willing to accept the insurance rate, then they could skip the notice and disclosure form.
2.) If the OON physician or provider wants to collect more than the insurance rate, then they could ask the enrollee (patient) to waive the prohibition on balance billing.
a. If the enrollee (patient) does not agree to waive their balance billing protections, then the OON physician or provider:
i. can proceed with the nonemergency health care or medical service and work it out with the insurance provider through the arbitration or mediation process; or
ii. decline to provide the nonemergency health care or medical service.
b. If the enrollee (patient) does waive their balance billing protections after the mandatory cooling off period, then the nonemergency health care or medical service will proceed and the enrollee (patient) may be balance billed.
The TMB takes all statutes and rules very seriously. The TMB will thoroughly investigate all complaints regarding any TMB licensee allegedly violating any statute or rule, including this statute and this rule should this rule be adopted. Further, Texas Insurance Code Sec. 752.0003 allows for enforcement of balance billing prohibitions by a regulatory agency such as TMB. Sec. 752.0002 allows the TMB to refer to the attorney general individuals that have exhibited a pattern of intentionally violating balance billing prohibitions. The attorney general may bring a civil action in the name of the state to enjoin the individual from the violation.
The TMB appreciates all of the comments received by legislators, stakeholders, licensees, patients, and individuals while developing this rule. The TMB Board Members will meet on December 6, 2019 to consider comments received on this proposed rule as part of the rule making process. The TMB Board Members will continue to consider ways to make all of our rules, including this proposed rule on balance billing, even better in order to protect the people of Texas.
