(a) For an out-of-network claim for which the enrollee is protected from balance billing under Insurance Code Chapter 1271, concerning Benefits Provided by Health Maintenance Organizations; Evidence of Coverage; Charges, the HMO must pay the claim according to that chapter and Insurance Code Chapter 1467, concerning Out-of-Network Dispute Resolution, as applicable.

(b) For an out-of-network claim that does not fall under subsection (a) of this section, if the services are medically necessary, covered under the plan, and not available through a network physician or provider within the applicable network adequacy standards, the HMO must pay the claim as required under Insurance Code §1271.055, concerning Out-of-Network Services, and:

(1) facilitate the enrollee’s access to care consistent with subsection (c) of this section and the access plan and documented plan procedures specified in §11.1607(j) of this title (relating to Accessibility and Availability Requirements); and

(2) inform the enrollee of their rights under this section, including:

(A) the out-of-network care that the enrollee receives for the identified services will be covered under the same benefit level as though the services were received from a network physician or provider and will not be subject to any service area limitation;

(B) the enrollee can ask the HMO to recommend a physician or provider that the enrollee can use without being responsible for an amount in excess of the cost-sharing under the plan and the enrollee should contact the HMO if they receive a balance bill;

(C) if the enrollee chooses not to use the physician or provider the HMO recommends, they may choose to use an alternative non-network physician or provider with the understanding that the enrollee will be responsible for any balance bill amount the alternative non-network physician or provider may charge in excess of the HMO’s usual and customary rate; and

(D) the amount of the HMO’s usual and customary rate for the anticipated services.

(c) If medically necessary covered services, other than emergency care, are not available through a network physician or provider within the applicable network adequacy standards, on the request of a network physician or provider the HMO must:

(1) consistent with Insurance Code §1271.055, process a referral to a physician or provider within the time appropriate to the circumstances relating to the delivery of the services and the condition of the patient, but in no event to exceed five business days after receipt of reasonably requested documentation;

(2) concurrent with the referral, approve a network gap exception and facilitate access to care to ensure the enrollee can access a physician or provider that:

(A) has expertise in the necessary specialty;

(B) is reasonably available considering the medical condition and location of the enrollee; and

(C) the enrollee may use without being responsible for an amount in excess of the enrollee’s cost-sharing responsibilities for care from a network physician or provider;

(3) if the HMO approves a referral to a physician or provider that meets the criteria in subsection (c)(2) of this section, the HMO must also, upon request from an enrollee or an individual acting on behalf of an enrollee and within the time appropriate to the circumstances, recommend at least one additional physician or provider that meets the criteria in subsection (c)(2) of this section; and

(4) if the HMO approves a referral to a physician or provider that does not meet the criteria in subsection (c)(2) of this section,

(A) the HMO must inform the enrollee of:

(i) why the physician or provider does not meet the criteria in subsection (c)(2) of this section; and

(ii) the enrollee’s right to request that the HMO recommend physicians or providers that meet the criteria; and

(B) upon request by the enrollee or an individual acting on behalf of the enrollee and within the time appropriate to the circumstances, the HMO must recommend a choice of at least two physicians or providers that meet the criteria in subsection (c)(2) of this section.

(d) After determining that a claim from a non-network physician or provider for services provided under this section is payable, an HMO must issue payment to the non-network physician or provider at the usual and customary rate or at a rate agreed to by the HMO and the non-network physician or provider. If the rate was not agreed to by the physician or provider, the HMO must provide an explanation of benefits to the enrollee that includes a statement that the HMO’s payment is at least equal to the usual and customary rate for the service, that the enrollee should notify the HMO if the non-network physician or provider bills the enrollee for amounts beyond the amount paid by the HMO, of the procedures for contacting the HMO on receipt of a bill from the non-network physician or provider for amount beyond the amount paid by the HMO, and the number for the department’s toll-free consumer information help line for complaints regarding payment.

(e) Any methodology used by an HMO to calculate reimbursements of non-network physicians or providers for covered services not available from network physicians or providers must comply with the following:

(1) if based on claims data, then the methodology must be based on sufficient data to constitute a representative and statistically valid sample;

(2) any claims data underlying the calculation must be updated no less than once per year and not include data that is more than 3 years old; and

(3) the methodology must be consistent with nationally recognized and generally accepted bundling edits and logic.

(f) An HMO must cover a clinician-administered drug under the plan’s in-network benefit if it meets the criteria under Insurance Code Chapter 1369, Subchapter Q, concerning Clinician-Administered Drugs.

Source Note: The provisions of this §11.1611 adopted to be effective August 1, 2017, 42 TexReg 2169; amended to be effective March 30, 2025, 50 TexReg 2213.