Austin plastic surgeon Elisabeth Potter, MD, routinely cares for breast cancer patients and survivors from as far away as El Paso and Amarillo.
“I’m seeing patients having to travel upwards of four hours to see a reconstruction surgeon who takes their insurance,” she told Texas Medicine.
Such patients are relatively lucky. Others can’t afford the travel – or time off work or child care – necessary to see her. Still others may not have in-network access to a breast reconstruction microsurgeon skilled in the preferred method, leaving them to choose between an inferior method or the steep cost of out-of-network care.
“These are the kinds of very practical issues that we’re seeing,” she said.
Although Texas has some of the strongest network adequacy rules in the country, poor enforcement and an overused waiver system have weakened physician practice viability and patients’ access to in-network care.
More than 90% of the commercial health plan networks filed with the Texas Department of Insurance (TDI) in 2022 didn’t meet state network adequacy standards and instead operated under a waiver, or “access plan,” detailing how the plan would cover such gaps, according to the agency. (See “Downed Networks,” page 32.)
Dr. Potter equates the current waiver practice to allowing car dealers to sell vehicles without brakes.
“The fact that 90% of plans have waivers means we have allowed insurance companies to run roughshod over Texans,” she said. “We’re letting insurance companies sell products that don’t meet the minimum need that the government has established.”
Thanks to advocacy by the Texas Medical Association, this will soon change.
Spurred by reports from Dr. Potter and others of payers offering health plans without a sufficient panel of in-network physicians, TMA prioritized network adequacy reform during the 2023 regular state legislative session – and celebrated the unanimous passage of House Bill 3359 in its final days.
Championed by medicine’s allies Rep. Greg Bonnen, MD (R-Friendswood), and Sen. Charles Schwertner, MD (R-Georgetown), the law codifies the state’s network adequacy rules in statute and strengthens their enforcement by TDI. TMA’s advocacy paid off in several other insurance-related legislative wins and continues in the form of monitoring rulemaking for HB 3359.
Dr. Potter, who testified on behalf of TMA in favor of HB 3359 in April, is hopeful about its implementation.
“I’m expecting that we’re going to see some dramatic changes in the quality of our networks,” she said.
Network adequacy gains
HB 3359 makes several improvements, including setting maximum travel distance and wait time standards for in-network care, reforming the “lax” waiver process, and protecting physicians from unilateral contract changes by health plans, says Tilden Childs, MD, a radiologist in Fort Worth and chair of TMA’s Council on Legislation.
Regarding waivers, HB 3359 requires health plans to monitor network adequacy compliance on an ongoing basis and erects guardrails, including new transparency measures – like public TDI hearings to determine whether a waiver is warranted – and renewal limits.
“Part of the intent of HB 3359 was to strengthen … the network adequacy protections by improving the waiver process and making it more stringent, so that health plans would actually have to follow the rules,” Dr. Childs said.
The law also prohibits health plans from amending certain terms in contracts with physicians and health care professionals without their consent.
Dr. Childs says this is an important hedge against plans that negotiate in bad faith.
Zeke Silva, MD, a radiologist in San Antonio and member of TMA’s Council on Legislation, adds these provisions also are critical considering their interaction with Texas’ surprise-billing law, for which TMA fought to provide balanced arbitration between physicians and state-regulated health plans when payment disputes arise over out-of-network claims.
Without the accountability of a fair arbitration process and strong contracting protections, Dr. Silva says payers have little incentive to negotiate with physicians in good faith, exacerbating network inadequacies.
“It’s nothing short of a patient care issue in our state,” he said.
HB 3359 also helps ensure the application of Texas’ surprise-billing law in certain circumstances over its weaker federal counterpart, the No Surprises Act, Dr. Silva adds. The state law mandates that out-of-network post-emergency stabilization care claims for state-regulated EPO plans be routed under Texas’ surprise-billing law.
With HB 3359’s passage secured, TMA now looks to the rulemaking phase, which is set to begin in December and will determine how the law is implemented.
TDI has indicated it likely will rewrite the state network adequacy rules impacted by HB 3359, which TMA Vice President of Public Affairs and Chief Lobbyist Clayton Stewart says will be a huge undertaking in the interim – and one the association will monitor closely.
“The rulemaking on that might as well be another legislative session,” he said Oct. 5 during TMA’s Business of Medicine Conference in Austin.
Dr. Silva adds such vigilance is necessary, citing the rulemaking associated with Texas’ 2021 “gold card” law, which exempts physicians who earn approvals on at least 90% of prior authorization requests for a given service or medication from onerous preapproval requirements for that service or medication.
TMA spearheaded the law, which appears to be working for many physicians, but there’s still work to be done to ensure that health plans subject to the law are held accountable under it and in line with state lawmakers’ intent. (See “Shielding the Gold Card Law,” page 34.)
Other insurance wins
In addition to HB 3359, TMA helped secure the passage of other patient and physician protections as well as the defeat of several bills that would have advanced questionable health plan practices. The wins include:
- House Bill 755, which restricts insurers from requiring more than one prior authorization request annually for certain drugs prescribed to treat patients with an autoimmune disease or certain blood disorders;
- House Bill 1647, which prohibits in certain circumstances the practice of white-bagging – in which insurers require physicians to purchase drugs through a health plan’s specialty pharmacy – known to cause dosage discrepancies and patient safety concerns; and
- House Bill 999, which bans in certain circumstances “copay accumulators,” meaning health plans are required to apply drug manufacturer coupons to patients’ applicable deductibles, copayments, or out-of-pocket maximums.
Austin gastroenterologist Pradeep Kumar, MD, testified on behalf of TMA in support HB 1647, which he said would protect patients’ access to physician-led care and shield them from out-of-pocket costs, such as in cases where the health plan’s specialty pharmacy is out of network.
“In cancer treatment, for instance, [white-bagging] can negatively impact patient care because it limits the flexibility needed when administering cancer drugs,” he told the House Insurance Committee on March 28. “Each patient is unique and may need adjustments to the course of treatment even on the day of the patient’s appointment.”
Dr. Silva, who testified on behalf of TMA in support of HB 999, says copay accumulators benefit health plans at patients’ expense by adding to their out-of-pocket costs.
“To us, it was pretty clear that this was a necessary patient protection,” he said.
On the defensive front, TMA killed several concerning bills, including:
- House Bill 2414, which would have allowed health plans to steer patients to physicians and health care professionals of their choosing, regardless of quality; and
- House Bill 633, which would have capped physician payments at the lowest contracted rate for many services, amplifying health plans’ already-considerable market power.