Purpose; Scope; Qualified Mediation Claim Criteria; Mediation Request Procedure; Informal Settlement Teleconference; Mediation Participation; Qualified Arbitration Claim Criteria; Arbitration Request Procedure; Required Explanation of Benefits;
Section 21.5001. Purpose
The purpose of this subchapter is to:
(1) prescribe the process for requesting, initiating, and conducting mandatory mediation and mandatory binding arbitration of claims as authorized in Insurance Code Chapter 1467, concerning Out-of-Network Claim Dispute Resolution;
(2) facilitate the process for the investigation and review of a complaint filed with the department that relates to the settlement of an out-of-network claim under Insurance Code Chapter 1467;
(3) prescribe the contents of the explanation of benefits as required by Insurance Code §1271.008, concerning Balance Billing Prohibition Notice; §1275.003, concerning Balance Billing Prohibition Notice; §1301.010, concerning Balance Billing Prohibition Notice; §1551.015, concerning Balance Billing Prohibition Notice; §1575.009, concerning Balance
Billing Prohibition Notice; and §1579.009, concerning Balance Billing Prohibition Notice; and
(4) facilitate the collection of data as authorized in Insurance Code §1467.006, concerning Benchmarking Database.
Filed with the Office of the Secretary of State on June 7, 2023.
This section was updated on July 23, 2023.
Section 21.5002. Scope
(a) This subchapter applies to a qualified mediation claim or qualified arbitration claim filed under health benefit plan coverage:
(1) issued by an insurer as a preferred provider benefit plan under Insurance Code Chapter 1301, concerning Preferred Provider Benefit Plans, including an exclusive provider benefit plan;
(2) administered by an administrator of a health benefit plan, other than a health maintenance organization (HMO) plan, under Insurance Code Chapters 1551, concerning Texas Employees Group Benefits Act; 1575, concerning Texas Public School Employees Group Benefits Program; 1579, concerning Texas School Employees Uniform Group Health
Coverage; or 1682, concerning Health Benefits Provided by Certain Nonprofit Agricultural Organizations; or
(3) offered by an HMO operating under Insurance Code Chapter 843, concerning Health Maintenance Organizations.
(b) This subchapter does not apply to a claim for health benefits that is not a covered claim under the terms of the health benefit plan coverage.
(c) Except as provided in §21.5050 of this title (relating to Submission of Information), this subchapter applies to a claim for emergency care or health care or medical services or supplies, provided on or after January 1, 2020. A claim for health care or medical services or supplies provided before January 1, 2020, is governed by the rules in effect immediately before the effective date of this subsection, and those rules are continued in effect for that purpose. This subchapter applies to a claim filed for emergency care or health care or medical services or supplies by the administrator of a health benefit plan under Chapter 1682.
This section was updated on July 23, 2023.
Section 21.5010. Qualified Mediation Claim Criteria
(a) Required criteria. An out-of-network provider that is a facility or a health benefit plan issuer or administrator may request mandatory mediation of an out-of-network claim under §21.5011 of this title (relating to Mediation Request Procedure) if the claim complies with the criteria specified in this subsection. An out-of-network claim that complies with those criteria is referred to as a “qualified mediation claim” in this subchapter.
(1) The out-of-network health benefit claim must be for:
(A) emergency care;
(B) an out-of-network laboratory service provided in connection with a health care or medical service or supply provided by a participating provider; or
(C) an out-of-network diagnostic imaging service provided in connection with a health care or medical service or supply provided by a participating provider.
(2) There is an amount billed by the provider and unpaid by the health benefit plan issuer or administrator after copayments, deductibles, and coinsurance, for which an enrollee may not be billed.
(b) Submission of multiple claim forms. The use of more than one form in the submission of a claim, as defined in §21.5003 of this title (relating to Definitions), does not prevent eligibility of a claim for mandatory mediation under this subchapter if the claim otherwise meets the requirements of this section.
(c) Ineligible claims. This division does not require a health benefit plan issuer or administrator to pay for an uncovered service or supply.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency’s legal authority.
Filed with the Office of the Secretary of State on June 7, 2023
This section was updated on July 23, 2023.
Section 21.5011. Mediation Request Procedure
(a)Mediation request and notice.
(1) An out-of-network provider that is a facility or a health benefit plan issuer or administrator may request mediation. To be eligible for mediation, the party requesting mediation must complete the mediation request information required on the department’s website at www.tdi.texas.gov, as specified in subsection (b) of this section.
(2) The party who requests the mediation must provide written notice to each other party on the date the mediation is requested. The notification must contain the information as specified on the department’s website, including the necessary claim information and contact information of the parties. A health benefit plan issuer or administrator requesting mediation must send the mediation notification to the mailing address or email address specified in the
claim submitted by the provider. If a provider does not specify an address to receive notice requesting mediation in the claim, a health benefit plan issuer or administrator may provide notice to the provider at the provider’s last known address the issuer or administrator has on file for the provider. A provider requesting mediation must send the mediation notification to the email address specified in the explanation of benefits by the health benefit plan issuer or
administrator
(b) Submission of request. The requesting party must submit information necessary to complete the initial mediation request, including:
(1) facility details, including identifying the facility type, facility contact information, and facility representative information;
(2) claim information, including the claim number, type of service or supply provided, date of service, billed amount, amount paid, and balance; and
(3) relevant information from the enrollee’s health benefit plan identification card or other similar document, including plan number and group number.
(c) Notice of teleconference outcome. Parties must submit additional information on the department’s website at the completion of the informal settlement teleconference period, including the date the teleconference request was received and the date of the teleconference.
(d) Mediator selection.
(1) The parties must notify the department through the department’s website on or before 30 days from the date the mediation is requested if:
(A) the parties agree to a settlement;
(B) the parties agree to the selection of a mediator; or
(C) the parties agree to extend the deadline to have the department select a mediator and notify the department of new deadlines.
(2) If the department is not given notification under paragraph (1) of this subsection, the department will assign a mediator after the 30th day from the date the mediation is requested. The parties must pay the nonrefundable mediator’s fee to the mediator when the mediator is assigned. Failure to pay the mediator when the mediator is assigned constitutes bad faith participation.
(e) Submission of information. Parties must submit information, as specified on the department’s website, to the department at the completion of the mediation or informal settlement, including:
(1) the name of the mediator, the date when the mediator was selected, the date when the mediation was held, the date of the agreement, the date of the mediator report, and when payment was made; and
(2) the agreement, including the original billed amount, payment amount, and the total agreed amount.
(f) Mediator approval and removal.
(1) Mediators may apply to the department using a method as determined by the Commissioner, including through an application on the department’s website or through the department’s procurement process. An individual or entities that employ mediators may apply for approval.
(2) A list of qualified mediators will be maintained on the department’s website. A mediator must notify the department immediately if the mediator wants to voluntarily withdraw from the list.
(3) At the discretion of the department, a mediator may be removed from the list of qualified mediators in certain circumstances, including failure to comply with any requirement under Insurance Code Chapter 1467, concerning Out-of-Network Claim Dispute Resolution, or rules adopted under Insurance Code §1467.003, concerning Rules.
(g) Mediation process.
(1) A party may request mediation after 20 days from the date an out-of-network provider receives the initial payment for a health benefit claim, during which time the out-of-network provider may attempt to resolve a claim payment dispute through the health benefit plan issuer’s or administrator’s internal appeal process.
(2) The parties may submit written information to a mediator concerning the amount charged by the out-of-network provider for the health care or medical service or supply and the amount paid by the health benefit plan issuer or administrator.
(3) The parties must evaluate the factors specified in Insurance Code §1467.056, concerning Matters Considered in Mediation; Agreed Resolution.
(4) Each party is responsible for reviewing the list of mediators and notifying the department within 10 days of the request for mediation whether there is a conflict of interest with any of the mediators on the list to avoid the department assigning a mediator with a conflict of interest.
(5) The parties may agree to aggregate claims between the same facility and same health benefit plan issuer or administrator for mediation.
(h) Assistance. Assistance with submitting a request for mediation is available on the department’s website at www.tdi.texas.gov.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency’s legal authority.
Filed with the Office of the Secretary of State on June 7, 2023
This section was updated on July 23, 2023.
Section 21.5012. Informal Settlement Teleconference
All parties subject to mandatory mediation requested by an out-of-network provider that is a facility or a health benefit plan issuer or administrator under this subchapter must use best efforts to coordinate the informal settlement teleconference required by Insurance Code §1467.054 (concerning Request and Preliminary Procedures for Mandatory Mediation). The parties or representatives of the parties must arrange a date and time when the parties or representatives of the parties can participate in the informal settlement teleconference, which must occur not later than the 30th day after the date on which the party submitted a request for mediation, unless the parties agree to extend the deadline.
Section 21.5013. Mediation Participation
Under Insurance Code §1467.101 (concerning Bad Faith), conduct that constitutes bad faith mediation includes failing to:
(1) participate in the mediation;
(2) provide information that the mediator believes is necessary to facilitate an agreement; or
(3) designate a representative participating in the mediation with full authority to enter into any mediated agreement.
Section 21.5040. Required Explanation of Benefits
A health benefit plan issuer or administrator subject to Insurance Code §1271.008, concerning Balance Billing Prohibition Notice; §1275.003, concerning Balance Billing Prohibition Notice; §1301.010, concerning Balance Billing Prohibition Notice; §1551.015, concerning Balance Billing Prohibition Notice; §1575.009, concerning Balance Billing Prohibition Notice; or §1579.009, concerning Balance Billing Prohibition Notice, must provide written notice in accordance with this section in an explanation of benefits in connection with a health care or medical service or supply provided by a non-network provider or an out-of-network provider:
(1) to the enrollee and physician or provider, which must include:
(A) a statement of the billing prohibition, as applicable; and
(B) the total amount the physician or provider may bill the enrollee under the health benefit plan and an
itemization of in-network copayments, coinsurance, deductibles, and other amounts included in that total;
and
(2) to the physician or provider, a conspicuous statement in not less than 10-point boldface type that is
substantially similar to the following: “If you disagree with the payment amount, you can request mediation
or arbitration. To learn more and submit a request, go to www.tdi.texas.gov. After you submit a complete
request, you must notify [Health Benefit Plan Issuer or Administrator Name] at [EMAIL].”
Filed with the Office of the Secretary of State on June 7, 2023.
This section was updated on July 23, 2023.
Section 5020. Qualified Arbitration Claim Criteria
(a)Required criteria. An out-of-network provider that is not a facility or a health benefit plan issuer or administrator may request mandatory binding arbitration of an out-of-network claim under §21.5021 of this title (relating to Arbitration Request Procedure) if the claim complies with the criteria specified in this section. An out-of-network claim that complies with those criteria is referred to as a “qualified arbitration claim” in this subchapter.
(1) The health benefit claim must be for:
(A) emergency care;
(B) a health care or medical service or supply provided by a facility-based provider in a facility that is a participating provider;
(C) an out-of-network laboratory service provided in connection with a health care or medical service or supply provided by a participating provider; or
(D) an out-of-network diagnostic imaging service provided in connection with a health care or medical service or supply provided by a participating provider; and
(2) The health benefit claim must be for a charge billed by the provider and unpaid by the health benefit plan issuer or administrator after copayments, coinsurance, and deductibles for which an enrollee may not be billed.
(b) Availability. Not later than the 90th day after the date an out-of-network provider receives the initial payment for a health care or medical service or supply, the out-of-network provider or the health benefit plan issuer or administrator may request arbitration of a settlement of an out-of-network health benefit claim. The initial payment could be zero dollars if the allowable amount was applied to an enrollee’s deductible.
(c) Ineligible claims. Unless otherwise agreed to by the parties, an arbitrator may not determine whether a health benefit plan covers a particular health care or medical service or supply.
Filed with the Office of the Secretary of State on June 7, 2023
This section was updated on July 23, 2023.
Section 5021. Arbitration Request Procedure
(a)Arbitration request and notice.
(1) An out-of-network provider or a health benefit plan issuer or administrator may request arbitration. To be eligible for arbitration, the party requesting arbitration must complete the arbitration request information required on the department’s website at www.tdi.texas.gov, as specified in subsection (b) of this section.
(2) The party who requests the arbitration must provide written notice to each other party on the date the arbitration is requested. The notification must contain the information as specified on the department’s website, including the necessary claim information and contact information of the parties. A health benefit plan issuer or administrator requesting arbitration must send the arbitration notification to the mailing address or email address specified in the
claim submitted by the provider. If a provider does not specify an address to receive notice requesting arbitration in the claim, the health benefit plan issuer or administrator may provide notice to the provider at the provider’s last known address the issuer or administrator has on file for the provider. A provider requesting arbitration must send the arbitration notification to the email address specified in the explanation of benefits by the health benefit plan issuer or
administrator.
(b) Submission of request. The requesting party must submit information necessary to complete the initial arbitration request, including:
(1) provider details, including identifying the provider type, provider contact information, and provider representative information;
(2) claim information, including the claim number, type of service or supply provided, date of service, billed amount, amount paid, and balance; and
(3) relevant information from the enrollee’s health benefit plan identification card or a similar document, including plan number and group number.
(c) Notice of teleconference outcome. Parties must submit additional information on the department’s website at the completion of the informal settlement teleconference period, including the date the teleconference request was received, the date of the teleconference, and settlement offer amounts.
(d) Arbitrator selection.
(1) The parties must notify the department, through the department’s website, on or before 30 days from the date arbitration was requested if:
(A) the parties agree to a settlement;
(B) the parties agree to the selection of an arbitrator; or
(C) the parties agree to extend the deadline to have the department select an arbitrator and notify the department of new deadlines.
(2) If the department is not given notification under paragraph (1) of this subsection, the department will assign an arbitrator after the 30th day from the date the arbitration is requested. The parties must pay the nonrefundable arbitrator’s fee to the arbitrator when the arbitrator is assigned. Failure to pay the arbitrator when the arbitrator is assigned constitutes bad faith participation, and the arbitrator may award the binding amount to the other party.
(e) Submission of information.
(1) The arbitrator must submit information, as specified on the department’s website, to the department at the completion of the arbitration, including:
(A) the name of the arbitrator, the date when the arbitrator was selected, the date of the decision, the date of the arbitrator report, and when payment was made; and
(B) the written decision, including any final offers made during the health benefit plan issuer’s or administrator’s internal appeal process or informal settlement, reasonable amount for the services or supplies, and the binding award amount.
(2) If the parties settle the dispute before the arbitrator’s decision, the parties must submit information, as specified on the department’s website, to the department, including:
(A) the date of the settlement; and
(B) the amount of the settlement.
(f) Arbitrator approval and removal.
(1) Arbitrators may apply to the department using a method as determined by the Commissioner, including through an application on the department’s website or the department’s procurement process. An individual or entities that employ arbitrators may apply for approval.
(2) A list of qualified arbitrators will be maintained on the department’s website. An arbitrator must notify the department immediately if the arbitrator wants to voluntarily withdraw from the list.
(3) At the discretion of the department, an arbitrator may be removed from the list of qualified arbitrators in certain circumstances, including failure to comply with any requirement under Insurance Code Chapter 1467, concerning Out-of-Network Claim Dispute Resolution, or rules adopted under Insurance Code §1467.003, concerning Rules.
(g) Arbitration process.
(1) A party may request arbitration after 20 days from the date an out-of-network provider receives the initial payment for a health benefit claim, during which time the out-of-network provider may attempt to resolve a claim payment dispute through the health benefit plan issuer’s or administrator’s internal appeal process.
(2) The parties must submit written information to an arbitrator concerning the amount charged by the out-of-network provider for the health care or medical service or supply, and the amount paid by the health benefit plan issuer or administrator.
(3) The arbitrator must evaluate only the factors specified in Insurance Code §1467.083, concerning Issue to Be Addressed; Basis for Determination.
(4) The arbitrator must provide the parties an opportunity to review the written information submitted by the other party, submit additional written information, and respond in writing to the arbitrator on the time line set by the arbitrator.
(5) Each party is responsible for reviewing the list of arbitrators and notifying the department within 10 days of the request for arbitration if there is a conflict of interest with any of the arbitrators on the list to avoid the department assigning an arbitrator with a conflict of interest.
(6) If a party does not respond to the arbitrator’s request for information, the dispute will be decided based on the available information received by the arbitrator without an opportunity for reconsideration.
(7) The submission of multiple claims to arbitration in one proceeding must be for the same provider and the same health benefit plan issuer or administrator and the total amount in controversy may not exceed $5,000.
(h) Assistance. Assistance with submitting a request for arbitration is available on the department’s website at www.tdi.texas.gov.
Filed with the Office of the Secretary of State on June 7, 2023.
This section was updated on July 23, 2023.