Commissioner Kent Sullivan
Texas Department of Insurance
P.O. Box 149104
Austin, Texas 78714
December 19, 2019
Dear Commissioner Sullivan:
We are writing today in opposition to the emergency rule, 28 TAC §§21.4901 -21.4904, which seeks to impose improper obstacles on Texas patients seeking medical care from independent physicians.
Forcing patients to wait at least 10 business days to receive care from an out-of-network physician is not only unacceptable but contrary to law. We urge you, in the strongest terms possible, to withdraw this rule until all mandatory delays impeding access to timely care are removed.
SB 1264, signed into law this past June by Governor Abbott, allows patients and out-of-network physicians to agree to mutually beneficial terms for the provision of non-emergency medical care. No waiting period was enacted in this legislation and no authority to set a waiting period was given by the law to the Texas Department of Insurance (TDI).
Therefore it is our view that the TDI would be acting outside of its authority by delaying, in this manner, the ability of Texas patients to obtain medical care from a physician with a valid Texas license. Any such interference by the Department controlling the timing or other standard terms of non-emergency care, mutually agreed upon by both patient and physician, would be contrary to law.
In addition, not only is the policy likely unlawful, but it is also potentially harmful to patients. Out-of-network care can often be a less expensive and higher quality option for patients than those available to them in increasingly narrow health plan controlled networks.
We also object to the apparent prohibition of
private contracts between patients and out-of-network physicians if “the
enrollee [does not have] a meaningful choice between a participating provider
for a health benefit plan issuer or administrator and an out-of-network
How can a physician, with no relationship to a patient’s insurance network, determine whether the patient has other options? And how can a physician be responsible for the adequacy of the insurer’s network? If the network does not offer the patient any “meaningful” in-network choices, does this mean the patient is not allowed to have the service? Also, we are aware of many cases in which patients are deliberately seeking care from out-of-network physicians because they value a patient-physician relationship free of third-party interference. Sometimes in these cases, the patient finds great value in contracting directly with the out-of-network surgeon, and using their insurance to help cover the in-network facility fee.
Similarly we object to the apparent requirement that CPT codes be included in the patient waiver. Physicians who do not contract with insurers do not necessarily charge on the basis of codes used by third party payers. A simple plain English description should be considered sufficient. Moreover, some procedures have not had a CPT code assigned by the AMA. The AMA has no right to dictate what procedures patients can buy with their own money by assigning or withholding their copyrighted CPT codes.
In conclusion, if the Department enacts such overregulation, AAPS will begin immediately exploring options for protecting the rights of Texas patients and physicians, including potential legal challenges, and means for redress through the Executive and Legislative branches of government.
We would also appreciate an opportunity to discuss our concerns with the department as soon as possible.
Thank you for your consideration of the foregoing concerns. Please stand up for patients in the Great State of Texas by correcting this serious flaw in the proposed rule.
Jane M. Orient, M.D.