SUBCHAPTER M. Mandatory Benefit Notice Requirements

28 TAC §§21.2101 - 21.2103, 21.2105, and 21.2106

1. INTRODUCTION. The Commissioner of Insurance adopts amendments to §§21.2101 - 21.2103, 21.2105 and 21.2106, concerning mandatory notice of coverage of certain tests for the detection of human papillomavirus and cervical cancer. The sections are adopted without changes to the proposed text published in the November 11, 2005 issue of the Texas Register (30 TexReg 7360).

2. REASONED JUSTIFICATION. These amendments are necessary to implement HB 1485 enacted by the 79th Texas Legislature, Regular Session, which added Chapter 1370 to the Texas Insurance Code, mandating certain benefits related to the detection of human papillomavirus and cervical cancer. Chapter 1370 also contains mandatory notice requirements. This adoption amends the notice provisions in 28 Texas Administrative Code, Subchapter M to implement the statutory notice requirement in §1370.004. The adoption also updates statutory references changed by the Texas Legislature's enactment of nonsubstantive revision of the Insurance Code.

3. HOW THE SECTIONS WILL FUNCTION. The amendments to §21.2101 expand the scope of the subchapter to include the notice requirements for coverage of benefits related to the detection of human papillomavirus and cervical cancer and set an effective date for the notice requirements. The amendments to §21.2102 revise the definitions of "carrier" and "health benefit plan" to implement the provisions of HB 1485. The amendments to §21.2103 require a carrier to issue the notice related to the detection of human papillomavirus and cervical cancer and revise subsection (d) to provide that if the mandated notice is issued prior to the effective date of these amendments, the notice is deemed compliant with the subchapter's notice requirements. The amendments to §21.2105 recognize statutory changes permitting electronic distribution of notices and address requirements relating to delivery of the notice. The amendment to §21.2106 adopts a new form, number LHL391, which carriers may use to satisfy the notice requirement. The adoption also includes corrective editorial and grammatical changes for clarity as well as to update statutory references.

4. SUMMARY OF COMMENTS. The department received no comments.

5. STATUTORY AUTHORITY. The amendments are adopted under Insurance Code §§1370.004, 1251.201, 1251.008, 1271.002, 843.151, and 36.001. Section 1370.004 requires health benefit plan issuers to provide written notice of coverage related to the detection of human papillomavirus and cervical cancer to each woman 18 years of age or older enrolled in the plan in accordance with rules adopted by the Commissioner. Section 1251.201 authorizes an insurer, by agreement between the insurer and the policyholder, to deliver certificates of insurance electronically. Section 1251.008 authorizes the commissioner to adopt rules necessary to administer Chapter 1251. Section 1271.002 authorizes an insurer, group hospital service corporation, or health maintenance organization, by agreement between it and the subscriber or other person entitled to receive the policy, contract, or evidence of coverage, to deliver evidences of coverage electronically. Section 843.151 authorizes the commissioner to adopt reasonable rules as necessary and proper to implement Chapter 1271. Section 36.001 provides that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state.

6. TEXT.

§21.2101. Scope. The purpose of this subchapter is:

(1) to require notice to enrollees in a health benefit plan of coverage and/or benefits for prostate cancer examinations; minimum inpatient stays for maternity and childbirth; minimum inpatient stays for mastectomy or lymph node dissection; reconstructive surgery after mastectomy; certain diagnostic screening tests for early detection of human papillomavirus and cervical cancer, and certain tests for the detection of colorectal cancer. With the exception of notice for reconstructive surgery after mastectomy, notice for certain diagnostic screening tests for early detection of human papillomavirus and cervical cancer, and notice for colorectal cancer detection, §§21.2102 - 21.2106 of this subchapter apply to all carriers issuing, delivering, or renewing health benefit plans as defined in this subchapter as of January 1, 1998. For state notice requirements pertaining to reconstructive surgery after mastectomy, §§21.2102 - 21.2106 of this subchapter apply to all carriers issuing, delivering, or renewing health benefit plans as defined in this subchapter as of June 18, 1999. For notice requirements pertaining to tests for colorectal cancer detection, §§21.2102 - 21.2106 of this subchapter apply to all carriers issuing, delivering, or renewing health benefit plans as defined in this subchapter as of January 1, 2002. For notice requirements pertaining to diagnostic screening tests for early detection of human papillomavirus and cervical cancer, §§21.2102 - 21.2106 of this subchapter apply on or after January 1, 2006, to all carriers issuing, delivering, or renewing health benefit plans as defined in this subchapter.

(2) to require notice to individuals who become eligible for certain protections regarding Medicare supplement coverage pursuant to §3.3312 of this title (relating to Guaranteed Issue for Eligible Persons). Section 21.2107 of this subchapter applies to all entities, as defined in §3.3312 of this title, that terminate coverage or have covered individuals who cease coverage on or after July 1, 1998, as described in §3.3312 of this title.

§21.2102. Definitions. The following words and terms, when used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise.

(1) Carrier – An insurance company, a group hospital service corporation, a fraternal benefit society, a stipulated premium insurance company, a health maintenance organization, a multiple employer welfare arrangement that holds a certificate of authority under Insurance Code Chapter 846, or an approved nonprofit health corporation that holds a certificate of authority issued by the commissioner under Insurance Code Chapter 844. In addition, for the purposes of paragraph (3)(B) and (F) of this section, the term also includes a reciprocal exchange operating under Insurance Code Chapter 942; for purposes of paragraph (3)(E) and (F) of this section, the term also includes a Lloyd’s plan operating under Insurance Code, Chapter 941; and for purposes of paragraph (3)(E) of this section, the term also includes a risk pool created under Chapter 172, Local Government Code.

(2) Enrollee – A person enrolled in and entitled to coverage under a health benefit plan, including covered dependents.

(3) Health benefit plan – Subject to subparagraphs (A), (B), (C), (D), (E), and (F) of this paragraph, a plan that is offered by a carrier and provides benefits for medical or surgical expenses incurred as a result of a health condition, accident, or sickness including an individual, group, blanket or franchise insurance policy or insurance agreement, a group hospital service contract, an individual or group evidence of coverage, or any similar coverage document. The term does not include a plan that provides coverage only for accidental death or dismemberment, disability income, supplement to liability insurance, Medicare supplement, workers’ compensation, medical payment insurance issued as a part of a motor vehicle insurance policy or a long-term care policy.

(A) For the inpatient mastectomy coverage notice required by subsection (a)(1) of §21.2103 of this title (relating to Mandatory Benefit Notices), the definition of health benefit plan includes a plan that provides coverage only for a specific disease or condition for the treatment of breast cancer or for hospitalization. The term does not include a small employer health benefit plan issued under the Insurance Code Chapter 1501, Subchapters A - H.

(B) For the reconstructive surgery after mastectomy notices required by subsection (a)(2) of §21.2103 of this title, the definition of health benefit plan does not include a plan that provides coverage for a specified disease or other limited benefit except for cancer, a plan that provides only credit insurance, a plan that provides coverage only for dental or vision care, or only for indemnity for hospital confinement.

(C) For the prostate cancer examination notice required by subsection (a)(3) of §21.2103 of this title, the definition of health benefit plan does not include a small employer health benefit plan written under the Insurance Code Chapter 1501, Subchapters A - H, a plan that provides coverage only for a specified disease or other limited benefit, or only for indemnity for hospital confinement.

(D) For the inpatient maternity and childbirth coverage notice required by subsection (a)(4) and (5) of §21.2103 of this title, the definition of health benefit plan does not include a plan that provides only credit insurance, a plan that provides coverage only for a specified disease or other limited benefit, only for dental or vision care, or only for indemnity for hospital confinement.

(E) For the detection of colorectal cancer screening coverage notice required by subsection (a)(6) of §21.2103 of this title, the definition of health benefit plan does not include a small employer health benefit plan written under the Insurance Code Chapter 1501, Subchapters A - H, or a plan that provides coverage only for a specified disease or other limited benefit or only for indemnity for hospital confinement.

(F) For the detection of human papillomavirus and cervical cancer screening notice required by subsection (a)(7) of §21.2103 of this title, the definition of "health benefit plan" includes a small employer health benefit plan written under Insurance Code Chapter 1501, but does not include:

(i) a plan that provides coverage only for a specified disease or other limited benefit, other than a plan that provides benefits for cancer treatment or similar services;

(ii) a plan that provides coverage only for dental or vision care;

(iii) a plan that provides coverage only for indemnity or hospital confinement;

(iv) a credit insurance policy; or

(v) a limited benefit policy that does not provide coverage for physical examinations or wellness exams.

(4) Other limited benefit – A plan that provides coverage singularly or in combination, for benefits for a specifically named disease, accident or combination of diseases or accidents, including but not limited to heart attack, stroke, AIDS, and travel, farm or occupational accident.

(5) Primary Enrollee – For group coverage, the covered member or employee of the group. For individual coverage, the person first named on the application and/or enrollment form.

§21.2103. Mandatory Benefit Notices.

(a) Prescribed mandatory benefit notices consist of the following:

(1) For a health benefit plan that provides coverage and/or benefits for the treatment of breast cancer, a carrier shall issue a notice which includes the language provided in Figure 1 of subsection (b) of §21.2106 of this title (relating to Forms, Form Number 349 Mastectomy).

(2) For a health benefit plan that provides coverage and/or benefits for a mastectomy, a carrier shall issue:

(A) an enrollment notice which includes the language provided in Figure 2 of subsection (b) of §21.2106 of this title (relating to Forms, Form Number 1764 Reconstructive Surgery After Mastectomy-Enrollment); and

(B) an annual notice, which includes either:

(i) the language provided in Figure 3 of subsection (b) of §21.2106 of this title (relating to Forms, Form Number 1764 Reconstructive Surgery After Mastectomy-Annual); or

(ii) the language provided in Figure 2 of subsection (b) of §21.2106 of this title (relating to Forms, Form Number 1764 Reconstructive Surgery after Mastectomy-Enrollment).

(3) For a health benefit plan that provides coverage and/or benefits for diagnostic medical procedures, a carrier shall issue a notice which includes the language provided in Figure 4 of subsection (b) of §21.2106 of this title (relating to Forms, Form Number 258 Prostate).

(4) For a health benefit plan that provides coverage and/or benefits for maternity, including benefits for childbirth, a carrier shall issue a notice which includes the language provided in Figure 5 of subsection (b) of §21.2106 of this title (relating to Forms, Form Number 102 Maternity).

(5) If the health benefit plan described in paragraph 4 of this subsection includes benefits and/or coverage for in-home postdelivery care, the following language, or substantially similar language, shall be inserted immediately before the "Prohibitions" portion of the notice language at Figure 5 of subsection (b) of §21.2106 of this title (relating to Forms): "Since we provide in-home postdelivery care, we are not required to provide the minimum number of hours outlined above unless (a) the mother's or child's physician determines the inpatient care is medically necessary or (b) the mother requests the inpatient stay."

(6) For a health benefit plan that provides coverage and/or benefits for medical screening procedures, a carrier shall issue a notice which includes the language provided in Figure 6 of subsection (b) of §21.2106 of this title (relating to Forms, Form Number 1467 Colorectal Cancer Screening).

(7) For a health benefit plan that provides coverage and/or benefits for medical screening procedures, a carrier shall issue a notice which includes the language provided in Figure 7 of subsection (b) of §21.2106 of this title (relating to Forms, Form Number LHL391 Human Papillomavirus and Cervical Cancer Screening).

(b) In lieu of the prescribed notices outlined in subsection (a) of this section, a carrier may opt to provide notices with substantially similar language rather than the notices contained in subsection (b) of §21.2106 of this title. The substantially similar language must be in a readable and understandable format, and must include a clear, complete, and accurate description of these items in the following order:

(1) a heading in bold print and all capital letters indicating the information in the notice relates to mandated benefits;

(2) a statement that the notice is being provided to advise the enrollee of the appropriate coverage and/or benefits, including the carrier's complete licensed name;

(3) a heading in bold print describing the coverage and/or benefits being provided, for example, Examinations for Detection of Prostate Cancer;

(4) a description of the coverage and/or benefits for which the notice is being provided. For a carrier who issues a health benefit plan that provides coverage and/or benefits for a mastectomy, the following shall also apply:

(A) the enrollment notice required by subsection (a)(2)(A) of this section shall disclose that the coverage and/or benefits shall be provided in a manner determined to be appropriate in consultation with the attending physician and the enrollee and shall state the specific deductibles, copayments and/or coinsurance, which may not be greater than the deductibles, copayments and/or coinsurance applicable to other benefits under the health benefit plan; and

(B) the annual notice required by subsection (a)(2)(B) of this section shall at a minimum describe that the health benefit plan provides coverage and/or benefits for reconstructive surgery after mastectomy, surgery and reconstruction of the other breast for symmetry, prostheses and treatment of complications resulting from a mastectomy (including lymphedema).

(5) for the notice required by subsection (a)(1), (2)(A) and (4) of this section, the heading "Prohibitions" in bold print, followed by a summary of the prohibited acts by a carrier in providing the coverage and/or benefits for which the notice is being provided; and

(6) a statement identifying the carrier, and providing a phone number and address to which an enrollee may direct questions regarding the coverage and/or benefits for which the notice is being provided.

(c) If a health benefit plan provides coverage and/or benefits of more than one of the required notices described in subsection (a) of this section, the carrier may combine the language of the required notices into one notice.

(d) If, before the effective date of the amendments to this subchapter relating to a notice listed in paragraphs (1) - (3) of this subsection, a carrier has provided to its enrollees notice(s) that contains the information concerning the required coverage or benefit, such notice(s) shall be deemed to comply with the requirements of this subchapter as to those enrollees;

(1) reconstructive surgery after mastectomy as required by subsection (a)(2) or (b) of this section;

(2) tests for detection of colorectal cancer as required by subsection (a)(6) or (b) of this section; and

(3) tests for detection of human papillomavirus and cervical cancer as required by subsection (a)(7) or (b) of this section.

§21.2105. Delivery of Mandatory Benefit Notices.

(a) The notices required by §21.2103(a)(1), (3) and (4) of this title (relating to Mandatory Benefit Notices) shall be issued to enrollees of a health benefit plan that is delivered, issued for delivery, or renewed on or after January 1, 1998, and shall be provided according to the following paragraphs:

(1) The notice shall be provided:

(A) within 60 days of March 29, 1998 to enrollees whose plans were renewed or issued between January 1, 1998 and March 29, 1998;

(B) within 60 days of enrollment to new enrollees, whether in a newly issued or newly delivered health benefit plan, or an existing plan which is renewed after March 29, 1998; or

(2) Except as specified in paragraph (6) of this subsection, a carrier shall deliver the notices to enrollees through the U.S. Postal Service or, as permitted by state law, electronically.

(3) The notice may be delivered with other health benefit plan documents as long as the time frames set forth in paragraph (1) of this subsection are met. For example, the notice may be delivered with the policy, certificate, evidence of coverage, or enrollment/insurance card.

(4) If the notices are provided to the primary enrollee's last known address, the requirements of this section are satisfied with respect to all enrollees residing at that address.

(5) If a covered spouse or dependent's last known address is different than the primary enrollee, separate notices are required to be provided to the spouse or the dependent at the spouse's or dependent's last known address.

(6) For group health benefit plans, the notice may be provided to the group master contract holder for distribution to enrollees if the carrier has an agreement with the group master contract holder that the notice will be delivered in accordance with the timelines specified in paragraph (1) of this subsection; however, the carrier will be held responsible for ensuring that notice is provided to the enrollees.

(b) The notices required by §21.2103(a)(2) of this title shall be issued to enrollees of a health benefit plan and shall be provided according to the following paragraphs.

(1) The enrollment notice required by §21.2103(a)(2)(A) of this title shall be issued to each enrollee upon enrollment in the health benefit plan.

(2) The annual notice required by §21.2103(a)(2)(B) of this title shall be issued to each enrollee annually.

(3) Notwithstanding §21.2103(a)(2) of this title, a carrier may elect to issue the enrollment notice required by §21.2103(a)(2)(A) of this title to satisfy the annual notice requirements set forth in §21.2103(a)(2)(B) of this title.

(4) The provisions of subsection (a)(2) - (6) of this section shall also apply to these notices, except for the timeline requirements of subsection (a)(1) of this section.

(c) A carrier shall issue the notices required by §21.2103(a)(6) and (7) of this title to enrollees of a health benefit plan, and subsections (a)(2) - (6) of this section shall also apply to the notices, except for the timeline requirements of subsection (a)(1) of this section.

§21.2106. Forms.

(a) The forms identified in §21.2103 of this title (relating to Mandatory Benefit Notices) for notices of mandatory benefits are included in subsection (b) of this section in their entirety and have been filed with the Office of the Secretary of State. The forms can be obtained from the Texas Department of Insurance, Life/Health Division, MC 106-1A, P.O. Box 149104, Austin, Texas 78714-9104, or from the department's Web site, www.tdi.state.tx.us.

(b) The forms referenced in this chapter are as follow:

(1) Figure Number 1: Form Number 349 Mastectomy:

Figure: 28 TAC §21.2106(b)(1):

NOTICE OF CERTAIN MANDATORY BENEFITS

This notice is to advise you of certain coverage and/or benefits provided by your
contract with [name of carrier].

Mastectomy or Lymph Node Dissection

Minimum Inpatient Stay: If due to treatment of breast cancer, any person covered by this plan has either a mastectomy or a lymph node dissection, this plan will provide coverage for inpatient care for a minimum of:

(a) 48 hours following a mastectomy, and

(b) 24 hours following a lymph node dissection.

The minimum number of inpatient hours is not required if the covered person receiving
the treatment and the attending physician determine that a shorter period of inpatient
care is appropriate.

Prohibitions: We may not (a) deny any covered person eligibility or continued eligibility or fail to renew this plan solely to avoid providing the minimum inpatient hours; (b) provide money payments or rebates to encourage any covered person to accept less than the minimum inpatient hours; (c) reduce or limit the amount paid to the attending physician, or otherwise penalize the physician, because the physician required a covered person to receive the minimum inpatient hours; or (d) provide financial or other incentives to the attending physician to encourage the physician to provide care that is less than the minimum hours.

If any person covered by this plan has questions concerning the above, please call [name of carrier] at [customer service or related department phone number], or write us at [carrier's customer service or related department address].

Form Number 349 Mastectomy

(2) Figure Number 2: Form Number 1764 Reconstructive Surgery After Mastectomy-Enrollment:

Figure: 28 TAC §21.2106(b)(2):

NOTICE OF CERTAIN MANDATORY BENEFITS

This notice is to advise you of certain coverage and/or benefits provided by your contract with [name of carrier].

Coverage and/or Benefits for Reconstructive Surgery After Mastectomy-Enrollment

Coverage and/or benefits are provided to each covered person for reconstructive surgery after mastectomy, including:

(a) all stages of the reconstruction of the breast on which mastectomy has been performed;

(b) surgery and reconstruction of the other breast to achieve a symmetrical appearance; and

The coverage and/or benefits must be provided in a manner determined to be appropriate in consultation with the covered person and the attending physician.

[Include any specific deductibles, copayments, and/or coinsurance applicable to the coverage and/or benefits, which may not be greater than the deductibles, copayments and/or coinsurance applicable to other coverage and/or benefits under the health benefit plan.]

Prohibitions: We may not (a) offer the covered person a financial incentive to forego breast reconstruction or waive the coverage and/or benefits shown above; (b) condition, limit, or deny any covered person's eligibility or continued eligibility to enroll in the plan or fail to renew this plan solely to avoid providing the coverage and/or benefits shown above; or (c) reduce or limit the amount paid to the physician or provider, nor otherwise penalize, or provide a financial incentive to induce the physician or provider to provide care to a covered person in a manner inconsistent with the coverage and/or benefits shown above.

Form Number 1764 Reconstructive Surgery After Mastectomy-Enrollment

(3) Figure Number 3: Form Number 1764 Reconstructive Surgery After Mastectomy-Annual:

Figure: 28 TAC §21.2106(b)(3):

NOTICE OF CERTAIN MANDATORY BENEFITS

This notice is to advise you of certain coverage and/or benefits provided by your contract with [name of carrier].

Coverage and/or Benefits for Reconstructive Surgery After Mastectomy-Annual

Your contract, as required by the federal Women's Health and Cancer Rights Act of 1998, provides benefits for mastectomy-related services including reconstruction and surgery to achieve symmetry between the breasts, prostheses, and complications resulting from a mastectomy (including lymphedema).

Form Number 1764 Reconstructive Surgery After Mastectomy-Annual

(4) Figure Number 4: Form Number 258 Prostate:

Figure: 28 TAC §21.2106(b)(4):

NOTICE OF CERTAIN MANDATORY BENEFITS

This notice is to advise you of certain coverage and/or benefits provided by your contract with [name of carrier].

Examinations for Detection of Prostate Cancer

Benefits are provided for each covered male for an annual medically recognized diagnostic examination for the detection of prostate cancer. Benefits include:

(a) a physical examination for the detection of prostate cancer; and

(b) a prostate-specific antigen test for each covered male who is

(1) at least 50 years of age; or

(2) at least 40 years of age with a family history of prostate cancer or other prostate cancer risk factor.

Form Number 258 Prostate

(5) Figure Number 5: Form Number 102 Maternity:

Figure: 28 TAC §21.2106(b)(5):

NOTICE OF CERTAIN MANDATORY BENEFITS

This notice is to advise you of certain coverage and/or benefits provided by your contract with [name of carrier].

Inpatient Stay following Birth of a Child

For each person covered for maternity/childbirth benefits, we will provide inpatient care for the mother and her newborn child in a health care facility for a minimum of:

(a) 48 hours following an uncomplicated vaginal delivery, and

(b) 96 hours following an uncomplicated delivery by cesarean section.

This benefit does not require a covered female who is eligible for maternity/childbirth benefits to (a) give birth in a hospital or other health care facility or (b) remain in a hospital or other health care facility for the minimum number of hours following birth of the child.

If a covered mother or her newborn child is discharged before the 48 or 96 hours has expired, we will provide coverage for postdelivery care. Postdelivery care includes parent education, assistance and training in breast-feeding and bottle-feeding and the performance of any necessary and appropriate clinical tests. Care will be provided by a physician, registered nurse or other appropriate licensed health care provider, and the mother will have the option of receiving the care at her home, the health care provider's office or a health care facility.

[ In-home postdelivery care language, if applicable, is to be inserted here.]

Prohibitions. We may not (a) modify the terms of this coverage based on any covered person requesting less than the minimum coverage required; (b) offer the mother financial incentives or other compensation for waiver of the minimum number of hours required; (c) refuse to accept a physician's recommendation for a specified period of inpatient care made in consultation with the mother if the period recommended by the physician does not exceed guidelines for prenatal care developed by nationally recognized professional associations of obstetricians and gynecologists or pediatricians; (d) reduce payments or reimbursements below the usual and customary rate; or (f) penalize a physician for recommending inpatient care for the mother and/or the newborn child.

Form Number 102 Maternity

(6) Figure Number 6: Form Number 1467 Colorectal Cancer Screening:

Figure: 28 TAC §21.2106(b)(6):

NOTICE OF CERTAIN MANDATORY BENEFITS

This notice is to advise you of certain coverage and/or benefits provided by your contract with [name of carrier].

Coverage for Tests for Detection of Colorectal Cancer

Benefits are provided, for each person enrolled in the plan who is 50 years of age or older and at normal risk for developing colon cancer, for expenses incurred in conducting a medically recognized screening examination for the detection of colorectal cancer. Benefits include the covered person's choice of:

(a) a fecal occult blood test performed annually and a flexible sigmoidoscopy performed every five years, or

(b) a colonoscopy performed every 10 years.

Form Number 1467 Colorectal Cancer Screening

(7) Figure Number 7: Form Number LHL391 Human Papillomavirus and Cervical Cancer Screening:

Figure: 28 TAC §21.2106(b)(7):

NOTICE OF CERTAIN MANDATORY BENEFITS

This notice is to advise you of certain coverage and/or benefits provided by your contract with [name of carrier].

Coverage of Tests for Detection of Human Papillomavirus and Cervical Cancer

Coverage is provided, for each woman enrolled in the plan who is 18 years of age or older, for expenses incurred for an annual medically recognized diagnostic examination for the early detection of cervical cancer. Coverage required under this section includes at a minimum a conventional Pap smear screening or a screening using liquid-based cytology methods, as approved by the United States Food and Drug Administration, alone or in combination with a test approved by the United States Food and Drug Administration for the detection of the human papillomavirus.