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Texas Department of Insurance
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Subchapter R. Diabetes

28 TAC §§21.2601 and 21.2606

The Commissioner of Insurance adopts amendments to §§21.2601 and 21.2606 concerning minimum standards for benefits provided to enrollees with diabetes in health benefit plans and coverage under health benefit plans for equipment and supplies and self-management training associated with the treatment of diabetes.

The amendments to §21.2601 are adopted with a change to the proposed text as published in the January 10, 2003 issue of the Texas Register (28 TexReg 430). The amendments to §21.2606 are adopted without changes and will not be republished.

The amendments to §§21.2602 and 21.2604 that were proposed in the January 10, 2003 issue of the Texas Register (28 TexReg 430) will not be adopted at this time. That proposal for amendments to those sections is being withdrawn. A separate new proposal for amendments to §§21.2602 and 21.2604 is being published simultaneously with this notice of adoption of the amendments to §§21.2601 and 21.2606.

The amendments are necessary to implement legislation enacted by the 76 th Legislature in Senate Bill 982, amending Article 21.53G, Coverage for Supplies and Services Associated with Treatment of Diabetes.

The adopted amendments to §21.2601 remove unnecessary language and add a definition for nutrition counseling. The adopted amendments to §21.2606 delete references to §21.2607, the repeal of which is being simultaneously adopted elsewhere in this issue of the Texas Register. The adopted amendments to §21.2606 also identify the components of diabetes self-management training and those individuals or entities who may provide diabetes self-management training and the required training for those individuals. The adoption also includes grammatical and other changes to conform language to Texas Register style guidelines.

§21.2604: A commenter believes that requiring a risk pool created pursuant to Local Government Code Chapter 172 to provide coverage for diabetes equipment and supplies and for diabetes self-management training is beyond the department´s authority. The commenter notes that Chapter 172 risk pools are generally exempt from Texas Insurance Code provisions but acknowledges that art. 21.53D contains language that essentially nullifies the Chapter 172 exemption. The commenter contends that the exemption applies to mandated benefits under article 21.53D, but not to coverage for supplies and services associated with diabetes under article 21.53G. The standards set forth by the commissioner pursuant to art. 21.53D, the commenter argues, "may not include requirements regarding coverage for supplies and services associated with the treatment of diabetes" because the legislature enacted a separate statute, article 21.53G, that applies to those supplies and services. The commenter requests that the rule be revised to clarify that Chapter 172 risk pools are subject only to the requirements of art. 21.53D and not to art. 21.53G.

Agency Response: While the department disagrees with the reasoning suggested by this commenter, the department is withdrawing the proposal to amend this section and publishing contemporaneously with this adoption notice a revised proposal to amend this subchapter. That proposal addresses the applicability of this subchapter to Chapter 172 risk pools, and the commenter may wish to submit comments that address that proposal during the comment period.

§21.2601(7): A commenter requests that the department amend the definition of "health benefit plan" to exclude Tricare Supplement policies, in the same way that Medicare supplement policies are excluded. These types of policies cover only such things as deductibles and copayments and are not health benefit plans.

Agency Response: The department agrees and has specifically excluded Tricare Supplement policies from the definition of "health benefit plan."

NAMES OF THOSE COMMENTING FOR AND AGAINST THE SECTIONS. For, with changes: Government Personnel Mutual Life Insurance Company and TML Intergovernmental Employee Benefits Pool (TML IEGP).

The amendments are adopted under the Insurance Code Article 21.53G, 21.53D and §36.001. Article 21.53G determines and defines the component or components of self-management training and provides that the commissioner shall adopt rules as necessary for the implementation of the article. Article 21.53D, §3 provides that the commissioner shall by rule adopt minimum standards for benefits to enrollees with diabetes and that each health care benefit plan shall provide benefits for the care required by the minimum standards. Section 36.001 provides that the Commissioner of Insurance may adopt rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance.

§21.2601. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Basic benefit--Health care service or coverage, which is included in the evidence of coverage, policy, or certificate, without additional premium.

(2) Caretaker--A family member or significant other responsible for ensuring that an insured not able to manage his or her illness (due to age or infirmity) is properly managed, including overseeing diet, administration of medications, and use of equipment and supplies.

(3) Diabetes--Diabetes mellitus. A chronic disorder of glucose metabolism that can be characterized by an elevated blood glucose level. The terms diabetes and diabetes mellitus are synonymous.

(4) Diabetes equipment--The term "diabetes equipment" includes items defined in Insurance Code Article 21.53 G §§1(1) and 5, and §21.2605 of this title (relating to Diabetes Equipment and Supplies).

(5) Diabetes supplies--The term "diabetes supplies" includes items defined in Insurance Code Article 21.53 G §§1(2) and 5, and §21.2605 of this title.

(6) Diabetes self-management training--Instruction enabling an insured and/or his or her caretaker to understand the care and management of diabetes, including nutritional counseling and proper use of diabetes equipment and supplies.

(7) Health benefit plan--A health benefit plan, for purposes of this subchapter, means:

(A) a plan that provides benefits for medical or surgical expenses incurred as a result of a health condition, accident, or sickness, including:

(i) an individual, group, blanket, or franchise insurance policy or insurance agreement, a group hospital service contract, or an individual or group evidence of coverage that is offered by:

(I) an insurance company;

(II) a group hospital service corporation operating under Chapter 20 of the Texas Insurance Code;

(III) a fraternal benefit society operating under Chapter 10 of the Texas Insurance Code;

(IV) a stipulated premium insurance company operating under Chapter 22 of the Insurance Code;

(V) a reciprocal exchange operating under Chapter 19 of the Texas Insurance Code; or

(VI) a health maintenance organization (HMO) operating under the Texas Health Maintenance Organization Act (Chapter 20A, Texas Insurance Code);

(ii) to the extent permitted by the Employee Retirement Income Security Act of 1974 (29 USC §1002), a health benefit plan that is offered by a multiple employer welfare arrangement as defined by §3, Employee Retirement Income Security Act of 1974 (29 USC §1002) that holds a certificate of authority under Insurance Code Article 3.95-2; or

(iii) notwithstanding §172.014, Local Government Code, or any other law, health and accident coverage provided by a risk pool created under Chapter 172, Local Government Code.

(B) A plan offered by an approved nonprofit health corporation that is certified under §5.01(a), Medical Practice Act, and that holds a certificate of authority issued by the commissioner under Insurance Code Article 21.52F.

(C) A health benefit plan is not:

(i) a plan that provides coverage:

(I) only for a specified disease or other limited benefit;

(II) only for accidental death or dismemberment;

(III) for wages or payments in lieu of wages for a period during which an employee is absent from work because of sickness or injury;

(IV) as a supplement to liability insurance;

(V) for credit insurance;

(VI) dental or vision care only; or

(VII) hospital confinement indemnity coverage only.

(ii) a small employer plan written under Chapter 26 of the Insurance Code;

(iii) a Medicare supplemental policy as defined by §1882(g)(1), Social Security Act (42 USC §1395 ss);

(iv) a plan that is designed to supplement benefits provided under a program established by the Department of Defense pursuant to Chapter 55 of Title 10, United States Code (10 USC Section 1071 et seq.);

(v) workers' compensation insurance coverage;

(vi) medical payment insurance issued as part of a motor vehicle insurance policy; or

(vii) a long-term care policy, including a nursing home fixed indemnity policy, unless the commissioner determines that the policy provides benefit coverage so comprehensive that the policy is a health benefit plan as described by subparagraph (A)of this paragraph.

(8) Insured--A person enrolled in a health benefit plan who has been diagnosed with:

(A) insulin dependent or noninsulin dependent diabetes; or

(B) elevated blood glucose levels induced by pregnancy or another medical condition associated with elevated glucose levels.

(9) Nutrition counseling--As defined in §701.002 of the Texas Occupations Code.

(10) Physician--A Doctor of Medicine or a Doctor of Osteopathy licensed by the Texas State Board of Medical Examiners.

(11) Practitioner--An Advanced Practice Nurse, Doctor of Dentistry, Physician Assistant, Doctor of Podiatry, or other licensed person with prescriptive authority.

§21.2606. Diabetes Self-Management Training.

(a) A health benefit plan shall provide diabetes self-management training or coverage for diabetes self-management training for which a physician or practitioner has written an order, including a written order of a practitioner practicing under protocols jointly developed with a physician, to each insured or the caretaker of the insured in accordance with the standards contained in Insurance Code Article 21.53G, Sec. 4(b) and (c).

(b) A person may not provide a component of diabetes self-management training under subsection (a) of this section unless the subject matter of the component is within the scope of the person´s practice and the person meets the education requirements as determined by the person´s licensing agency in consultation with the commissioner of health.

(c) Self-management training shall include the development of an individualized management plan that is created for and in collaboration with the insured and that meets the requirements of the minimum standards for benefits in accordance with §21.2604 of this title (relating to Minimum Standards for Benefits for Persons with Diabetes).

(d) Nutrition counseling and instructions on the proper use of diabetes equipment and supplies shall be provided or covered as part of the training.

(e) Diabetes self-management training shall be provided, or coverage for diabetes self-management training shall be provided to an insured or a caretaker, upon the following occurrences relating to an insured, provided that any training involving the administration of medications must comply with the applicable delegation rules from the appropriate licensing agency:

(1) the initial diagnosis of diabetes;

(2) the written order of a physician or practitioner indicating that a significant change in the symptoms or condition of the insured requires changes in the insured's self-management regime;

(3) the written order of a physician or practitioner that periodic or episodic continuing education is warranted by the development of new techniques and treatment for diabetes.

(f) An HMO shall provide oversight of its diabetes self-management training program on an ongoing basis to ensure compliance with this section.

(g) Health benefit plans provided by entities other than HMOs shall disclose in the plan how to access providers or benefits described in subsection (a) of this section.

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