In the Matter of: |
|
The Proposed Insurance |
Department Regulation No. 83 |
Docket No. 99-29 |
Order
COMES NOW, the Insurance Commissioner of the State of Delaware and Orders in conformance with the Proposed Order and Recommendation of the Hearing Officer as follows:
WHEREAS, I have considered the Proposed Order and Recommendation submitted by the Hearing Officer, as well as the entire record of this matter; and
WHEREAS, I adopt the Proposed Order and Recommendation and incorporate the summary of evidence, the proposed findings of fact, and the recommendation of the Hearing Officer by this reference.
NOW THEREFORE, I Order that Regulation No.83 be promulgated as referenced herein, effective on January 1, 2000.
SO ORDERED this 27th day of September 1999.
Donna Lee Williams
Insurance Commissioner, State of Delaware
Proposed Order and Recommendations
Proposed Regulation 83 requires health insurance companies to make appropriate payment for the services of assistants at surgery.
On June 1, 1999, proposed regulation 83 was published in the Register of Regulations in accordance with 29 Del. C. chapters 11 and 101. Also in accordance with 29 Del. C. chapter 101, notices of the public hearing were published in newspapers throughout the state (see Exhibit 1). The public hearing was held on June 24, 1999 before the below-signed hearing officer. The record was left open until July 9, 1999 to allow for the submission of additional exhibits by interested parties. The following is the Proposed Order and Recommendation regarding the adoption of Regulation 83.
Present at the June 24 hearing were numerous individuals representing healthcare providers the insurance industry and others. A list of attendees is attached hereto as Exhibit “A”.
I. Summary of the Evidence
The evidence in this matter consists of the oral testimony of 15 individuals, as well as numerous written submissions by interested parties attached hereto as exhibits. In making the following recommendation I have considered the contents of the file, including the oral testimony given at the aforementioned public hearing and the exhibits attached hereto. In summary, strong support for the adoption of a standard governing reimbursement for services performed by assistants at surgery was expressed by healthcare providers who testified at the hearing. Criticisms of the proposed Regulation include:
1. Concern that the adoption of proposed Regulation 83 would increase healthcare costs in the form of higher premium expenses;
2. Lack of jurisdiction;
3. §2(4) references professional titles not recognized by Delaware law or Medicare rules;
4. Proposed Regulation 83 distinguishes between physician employers and institutional employers of assistants at surgery;
5. §5 guidelines for payment are vague as they refer to paying claims “in the same manner as Medicare”;
6. Use of the phrase “health insurance or benefits” is so broad as to be construed to include certain property/casualty insurance products; and
7. §7 as proposed gives rise to penalties absent an order of the Commissioner.
II. Findings of Fact and Conclusions of Law
Based upon the evidence received in this matter both oral and written, I find that the adoption of standards for the payment of claims related to the services of assistants at surgery is advisable as a matter of fundamental fairness and promotes . I find that:
1. The public policy justification for ensuring proper claims handling of services performed by assistants at surgery outweighs the risk of relatively slight premium increases;
2. The Insurance Commissioner possesses the jurisdiction to promulgate Regulation 83 on the grounds that failure to pay claims properly and fairly constitutes a violation of subparagraph d. of 18 Del. C. §2304(16). Further, the Commissioner is authorized under §2312 and §311 to issue reasonable regulations that are necessary to prohibit practices identified in §2304.
3. References to professional titles not recognized under Delaware law should be stricken;
4. The limitation that fees for the services of assistants at surgery shall not be payable to hospital ambulatory surgical centers is unjustified and should be stricken;
5. Regulation 83 guidelines for the payment of assistant at surgery fees should be referenced with greater specificity.
6. It is the Department’s intent to restrict application of the provisions of proposed Regulation 82 to health insurance plans offering comprehensive, major medical coverage and not to apply them to property/casualty insurance or limited benefit plans; and
7. §7 is to be revised to clarify that penalties are recoverable only pursuant to an order of the Commissioner.
I recommend a number of additional technical revisions to the proposed regulation as they appear in the “marked up” version of Regulation 83 attached hereto as Exhibit “B”.
III. Recommendation
For the above reasons, it is recommended that the Insurance Commissioner adopt Regulation 83 in the form attached as Exhibit “B”.
SO RECOMMENDED, this 22nd day of September 1999.
Fred A. Townsend III
Hearing Officer
Reg. No. 83, Standards of Payment for Assistants At Surgery
Sections
1. Authority
2. Definitions
3. Scope
4. Purpose
5. Procedure for Payment
6. General Business Practice
7. Penalty
8. Causes of Action and Defenses
9. Effective Date
§1. Authority.
This regulation is adopted by the Commissioner pursuant to 18 Del. C. §§311, 2304(16) and 2312. It is promulgated in accordance with 29 Del. C. Chapter 101.
§ 2. Definitions.
For the purpose of this regulation, the following definitions shall apply:
(1) Health insurer: health insurance companies, health maintenance organizations, health service corporations and any other entity providing a plan of health insurance or benefits subject to state insurance regulations.
(2) Health Care Provider: any entity or individual licensed, certified or otherwise permitted by law to provide health care in the ordinary course of business, practice or profession.
(3) Policyholder or Certificate Holder: a person covered under such policy or a representative designated by such person and entitled to services provided in the policy.
(4) Assistant at Surgery: a physician, nurse practitioner, clinical nurse specialist, [certified surgical technician, certified first surgical assistant,]or physician assistant who is licensed and actively assists the physician in charge of a case in performing a surgical procedure.
[(5) Fee schedule: the monetary allowance payable to a healthcare provider for services rendered as provided for by agreement between the health care provider and the health insurer.]
§3. Scope.
This regulation shall apply to all health insurers as defined in Section 2 above, and shall apply to all contracts for insurance [and certificates of coverage] issued by [these such] entities.
§4. Purpose.
Some surgical procedures require a primary surgeon and an assistant surgeon. Federal law sets forth guidelines for the payment, under Medicare Part B, for the services of assistants at surgery. No such guidelines exist in Delaware law, and in many cases health insurers will not pay for such services. The purpose of this regulation is to require that health insurers make payment for the services of assistants at surgery in the same manner as provided for under Medicare Part B.
§5. Guidelines for payment for the services of assistants at surgery.
(a) A health insurer shall be required to make payment for the professional services of assistants at surgery. Such payment shall be made in the same manner set as forth in the Balanced Budget Act of 1997 and applicable publications issued by the Health Care Financing Administration (HCFA), including but not limited to HCFA’s regulations, the Medicare Part B Physician/Supplier Handbook, and Medicare Part B newsletters.
(b) [Payment for the services of an assistant at surgery shall be made only to the surgical assistant’s employer if such employer is neither a hospital or ambulatory surgical center. Medicare rules governing the following aspects of claims for services of assistants at surgery shall be observed:
(1) the percentage of fee schedule (as “fee schedule” is defined herein) for physicians acting as assistants at surgery;
(2) the percentage of fee schedule (as “fee schedule” is defined herein) for non physicians acting as assistants at surgery; and
(3) whether the surgical procedure in question is eligible for assistant at surgery services.]
§6. General Business Practice.
(a) Within a 36 month period, three instances of a health insurer’s failure to pay a claim or bill for services promptly, as defined in section 5 above, shall give rise to a rebuttable presumption that the insurer is in violation of 18 Del. C. §2304(16)(f).
(b) The 36 month period established in subsection (a) above shall be measured based upon the date the complaints are received at the Department. Each claim or bill, or portion of a claim or bill, pertaining to a single medical treatment or procedure provided to an individual policyholder that is processed in violation of this regulation shall constitute an “instance” as described in subsection (a) above.
§7. Penalties.
In addition to the imposition of penalties in accordance
with 18 Del. C. §2312(b), any health insurer that fails to adhere to the standards contained in this regulation [shall may] be required [by order of the Commissioner] to pay to the health care provider or claimant, in full settlement of the claim or bill for heath care services, the amount of the claim or bill plus interest at the maximum rate allowable to lenders under 6 Del.C. §2301(a). [This Such] interest shall be computed from the date the claim or bill for services first became due.
§8. Causes of Action and Defenses.
This regulation shall not create a cause of action for any person or entity, other than the Delaware Insurance Commissioner, against a health insurer or its representative based upon a violation of 18 Del. C. §2304(16). In the same manner, nothing in this regulation shall establish a defense for any party to any cause of action based upon a violation of 18 Del. C. §2304(16).
§9. Effective Date.
This regulation shall become effective [120 days from the date signed by the Commissioner on January 1, 2000.]