HBA-TYH H.B. 2096 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 2096
By: Davis, John
Insurance
4/9/1999
Introduced



BACKGROUND AND PURPOSE 

The 74th Legislature adopted Article 1.10D, Insurance Code, to create
within the Texas Department of Insurance (department) an insurance fraud
unit.  The purpose of the insurance fraud unit is to identify and
investigate insurance fraud, to cooperate with other law enforcement
authorities, and to discipline and prosecute violators of the insurance
laws.  Since the passage of the statute, it has been estimated that for
every dollar spent on insurance fraud investigation about $7 is saved or
recovered.  H.B. 2096 improves the capacity of the department to perform
its duties under the provisions of Article 1.10D, Insurance Code, by: 

_requiring insurers to notify policyholders and providers of the
consequences of fraud; 
_creating new administrative authority for the commissioner of insurance to
address fraud; 
_requiring insurers to create anti-fraud investigative units within their
companies; 
_creating immunities for insurer-to-insurer communications relating to the
identification of suspected fraud; and 
_requiring health care provider licensing agencies to institute discipline
against their licensees upon convictions for criminally fraudulent acts. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 3, Insurance Code, by adding Article 3.101 of a
new Subchapter L, Insurer Anti-fraud Programs, as follows:  

Art. 3.101.  STATEMENT OF PUBLIC POLICY.  Provides  legislative findings
regarding the health insurance business's propensity for  potential abuse
and illegal activities.  There are numerous law enforcement agencies
investigating and prosecuting fraudulent activity. This chapter is intended
to permit the full utilization of the expertise of the commissioner of
insurance (commissioner) and the Texas Department of Insurance (department)
to more effectively investigate and discover insurance frauds, halt
fraudulent activities, and assist and receive assistance from law
enforcement agencies in prosecution of insurance frauds. 

SECTION 2.   Amends Chapter 3, Insurance Code, by adding Article 3.101-1 of
a new Subchapter L, Insurer Anti-fraud Programs, as follows: 

Art. 3.101-1.  NOTICE OF PENALTY FOR FALSE OR FRAUDULENT CLAIMS; DISPLAY ON
FORMS.  Requires any insurer who prints, reproduces, or furnishes a form to
any person, who gives notice to the insurer or makes claim against it, to
print or display a statement or a statement substantially similar in terms
of intent and language on the form. Sets forth the specific language of the
statement. 

SECTION 3.  Amends Chapter 3, Insurance Code, by adding Article 3.101-2 of
a new Subchapter L, Insurer Anti-fraud Programs, as follows: 

 Art. 3.101-2.  ADMINISTRATIVE ACTION FOR FRAUD.  Authorizes the
commissioner to order the insurer to retain amounts that would otherwise be
owed to the health care provider, if the commissioner determines that an
insurer has been defrauded by the action of a health care provider,
including a hospital, physician, dentist, chiropractor, nurse, or other
practitioner of the health care or healing arts. 

SECTION 4.  Amends Chapter 3, Insurance Code, by adding Article 3.101-3 of
a new Subchapter L, Insurer Anti-fraud Programs, as follows: 

Art. 3.101-3.  INSURER ANTI-FRAUD INVESTIGATIVE UNITS.  (a)  Requires every
insurer in this state who had $10 million or more in direct premiums
written at any time in the previous calendar year to: 

(1)  establish and maintain a division within the company to investigate
possible fraudulent claims by insureds or against the insureds; or  

(2)  contract with others to investigate possible fraudulent claims against
policies held by its insureds.  
 
(b)  Requires an insurer to file a detailed description of the division and
the results of its investigations annually for approval with the insurance
fraud unit of the department (fraud unit) ( Article 1.10D, Insurance Code
(Insurance Fraud Unit)) beginning on or before July 1, 2001. 

(c)  Provides that every insurer in this state, who had less than $10
million in direct premiums written in the previous calendar year, must
adopt annually an anti-fraud plan and file it for approval with the fraud
unit beginning on or before July 1, 2001.  Requires the insurer, after the
insurer's satisfaction of its first filing requirement, to comply
thereafter with the filing dates as established by the commissioner 

(d)  Authorizes an insurer, in discharging its obligation to establish and
maintain an anti-fraud division, to contract with others to investigate
possible fraudulent claims against policies held by its insureds. 

(e)  Requires an insurer's anti-fraud plan, if one is established and
maintained, to include:  

(1)  a description of the insurer's procedures for detecting and
investigating possible fraudulent insurance acts; 

(2)  a description of the insurer's procedures for the mandatory reporting
of possible fraudulent insurance acts to the fraud unit; 
  
(3)  a description of the insurer's plan for anti-fraud education and
training of its claims adjusters or other personnel; 
  
(4)  the names, addresses, telephone numbers, and fax numbers of the
persons assigned by the insurer to staff the insurer's anti-fraud division;
and 
  
(5)  a written description or chart outlining the organizational
arrangement of the insurer's anti-fraud personnel who are responsible for
the investigation and reporting of possible fraudulent insurance acts.  
 
(f)  Requires an insurer, who elects to contract with others to investigate
possible fraudulent claims against policies held by it insureds, to file
for approval with the fraud unit: 
  
(1)  a copy of the written contract between the insurer and the entity with
which the insurer has entered into an agreement to investigate possible
fraudulent insurance claims; 
   
(2)  the names, addresses, telephone numbers, and fax numbers of the
principals of the entity with which the insurer has entered into an
agreement to investigate possible fraudulent claims; and 
  
(3)  the qualifications of the principals of the entity with which the
insurer has entered into an agreement to investigate possible fraudulent
claims.  
 
(g)  Requires any insurer who obtains a certificate of authority after
January 1, 2000, to comply with the requirements of this section within18
months.  Requires the insurer to comply thereafter with the filing dates as
established by the commissioner.  
 
(h) Defines the term "division" to include the assignment of fraud
investigation to employees whose principal responsibilities are the
investigation and disposition of claims.  
 
(i)  Provides that if an insurer hires additional employees or contracts
with another entity to fulfill the requirements of this section, the
additional cost incurred must be included as an administrative expense for
ratemaking purposes.  

SECTION 5.  Amends Chapter 3, Insurance Code, by adding Article 3.101-4 of
a new Subchapter L, Insurer Anti-fraud Programs, as follows: 

Art. 3.101-4.  IMMUNITY FOR INSURER-TO-INSURER INFORMATION SHARING. (a)
Authorizes an insurer or its contracting entity, in the course of
investigating possible insurance fraud claims, to share information with
other insurers or entities that have contracted with insurers to provide
anti-fraud investigative services.  
 
(b)  Provides that the sharing of information between insurers and their
contracting entities under this statute will not subject the parties to
liability for defamation by the health care provider if the provision of
information is for the purpose of reporting, detecting, or preventing
fraudulent insurance acts and is made without malice, fraudulent intent, or
bad faith.  
 
(c)  Provides that this section does not affect or modify any common law or
statutory privilege or immunity.  

SECTION 6.  Amends Title 1, Health and Safety Code, by adding Section 2.001
of a new Chapter 2, Health Care Fraud Programs, as follows: 

Sec. 2.001.  PUBLIC POLICY.  Requires it to be the policy of this state to
confront aggressively the problem of health care fraud in Texas by
facilitating the detection and prevention of fraud at its source.  

SECTION 7.  Amends Title 1, Health and Safety Code, by adding Section 2.002
of a new Chapter 2, Health Care Fraud Programs, as follows: 

Sec. 2.002.  DEFINITIONS.  Defines "insurer," "health maintenance
organization,"and "health care provider." 

SECTION 8.  Amends Title 1, Health and Safety Code, by adding Section 2.003
of a new Chapter 2, Health Care Fraud Programs, as follows: 

Sec. 2.003.  UNPROFESSIONAL CONDUCT.  (a)  Requires the following actions
carried out by a provider in his or her professional activities to
constitute unprofessional conduct and provide grounds for disciplinary
action, if he or she: 

(1)  knowingly presents or causes to be presented any false or fraudulent
claim for the payment of a loss under a contract of insurance; 
 
(2)  knowingly prepares, makes, or subscribes any writing, with intent to
present or use, or to allow it to be presented or used in support of any
false or fraudulent claim; 
  
(3)  commits an offense that is a violation of Chapter 35 (Insurance
Fraud), Penal Code, or is a violation of any similar statute under the laws
of other jurisdictions.  
 
(b)  Requires a violation of this provision, in addition to such other
provisions of civil or criminal law, to constitute cause for the suspension
of the provider's license for one year for the first conviction for fraud
in any jurisdiction, and revocation of a provider's license for the second
conviction in any jurisdiction.  Provides that the first and second
convictions need not occur in the same jurisdiction for the revocation to
be imposed.  

SECTION 9.  Amends Title 1, Health and Safety Code, by adding Section 2.004
of a new Chapter 2, Health Care Fraud Programs, as follows: 

Sec. 2.004.  NON-APPLICATION TO ERISA PLANS.  Prohibits any portion of this
chapter from being construed to apply to those self-funded health care
plans that may be governed by the provisions of Employee Retirement Income
Security Act of 1974, as amended.  

SECTION 10.  Amends Article 1.10D, Insurance Code, by adding Section 3A, as
follows: 

Sec. 3A.  INSURER ANTI-FRAUD INVESTIGATIVE REPORTS.  (a)  Requires the
insurance fraud unit to receive, review, and investigate in a timely manner
all insurer anti-fraud reports submitted pursuant to the provisions of
Article 3.101. 
 
(b)  Requires the insurance fraud unit to report in writing annually to the
commissioner the number of cases completed and recommendations for new
regulatory and statutory responses to the types of fraudulent activities
being encountered by the insurance fraud unit.  

SECTION 11.  Amends Article 1.10D, Insurance Code, by adding Subsection
2(h), as follows: 

(h)  Requires the insurance fraud unit to be funded by an anti-fraud
assessment levied against insurers calculated as a percentage of the total
premium written during the previous calendar year.  Requires the percentage
and dates of payment to be set by the commissioner upon notice and hearing.
Prohibits the anti-fraud assessment from exceeding one-half percent of
gross premiums written by the insurer.  Authorizes the insurer to take as a
credit against any premium tax obligations under the provisions of Article
4.11 (Life, Health, and Accident Insurance Companies; Premium Tax), the
amount paid on the anti-fraud assessment.  Requires the anti-fraud
assessment to be paid to the office of the comptroller of public accounts.  

SECTION 12.  Effective date: January 1, 2000.

SECTION 13.  Emergency clause.