[co-author: Wellesley Anna DuBois]
On June 19, 2020, the Texas Department of Insurance adopted final rules specifying patient notice and election requirements in order for out-of-network providers to balance bill. The final rules replace similar emergency rules that were adopted on December 18, 2019.
Under the new rules, which are meant to implement legislation passed in 2019 by the Texas Legislature, out-of-network providers are prohibited from Balance Billing for nonemergency services unless a patient elects, in writing, to obtain the service from the out-of-network provider. The patient’s election is only effective if the provider satisfies the following notice and disclosure requirements: (1) the patient is provided with a “meaningful choice between an in-network provider and an out-of-network provider,” (2) the patient is not “coerced” into choosing the out-of-network provider, and (3) the patient is provided with a written notice and disclosure. The notice and disclosure statement must be signed by the patient at least 10 business days before receiving any care.
A major concern for healthcare providers is the 10-day advance notice and disclosure requirement. This timing issue was raised by numerous commenters during the notice and comment period. The department declined to make any changes to the 10-day requirement, explaining that it is consistent with the intent of SB 1264 and provides the patient with enough time to fully consider their options. This requirement could significantly impact providers’ ability to recover any lost charges, and will likely be a point of contention in the future.
Providers should review their policies and procedures to ensure that nonemergency out-of-network patients are immediately identified and given notice in compliance with the new rules. Each patient must review and sign the TDI form balance billing waiver (form AH025) before scheduling any services. The form cannot be modified in any way.
If you have any questions about these rules, please reach out to our excellent team of healthcare attorneys at Husch Blackwell.
 45 Tex. Reg. 4177, 4204 (to be codified at 28 Tex. Admin. Code §§ 21.4901–29.4904) (Tex. Dep’t of Ins.).
 Id. at 4208–09.