(a) When services are rendered to an enrollee by a non-network facility-based physician in a network facility, or in circumstances where an enrollee is not given the choice of a network physician or provider, the HMO must fully reimburse the non-network facility-based physician or provider at the usual and customary rate as described in subsection (e) of this section or at an agreed rate.
(b) In circumstances where an enrollee receives emergency care in a non-network facility, the HMO must fully reimburse a non-network physician or provider for emergency care services at the usual and customary rate as described in subsection (e) of this section or at an agreed rate until the enrollee can reasonably be expected to transfer to a network physician or provider.
(c) If medically necessary covered services, other than emergency care, are not available through a network physician or provider on the request of a network physician or provider, the HMO must:
  (1) approve a referral to a non-network physician or provider within the time appropriate to the circumstances relating to the delivery of the services and the condition of the patient, but in no event to exceed five business days after receipt of reasonably requested documentation; and
  (2) provide for a review by a physician or provider with expertise in the same specialty as or a specialty similar to the type of health care physician or provider to whom a referral is requested under paragraph (1) of this subsection before the HMO may deny the referral.
(d) An HMO reimbursing a non-network physician or provider providing services under subsection (a), (b), or (c) of this section must ensure that the enrollee is held harmless for any amounts beyond the copayment or other out-of-pocket amounts that the enrollee would have paid had the HMO network included network physicians or providers from whom the enrollee could obtain the services.
(e) After determining that a claim from a non-network physician or provider for services provided under subsection (a), (b), or (c) of this section is payable, an HMO must issue payment to the non-network physician or provider at the usual and customary rate or at a rate agreed to by the HMO and the non-network physician or provider. If the rate was not agreed to by the physician or provider, the HMO must provide an explanation of benefits to the enrollee that includes a statement that the HMO's payment is at least equal to the usual and customary rate for the service, that the enrollee should notify the HMO if the non-network physician or provider bills the enrollee for amounts beyond the amount paid by the HMO, of the procedures for contacting the HMO on receipt of a bill from the non-network physician or provider for amount beyond the amount paid by the HMO, and the number for the department's Consumer Protection Section for complaints regarding payment.
(f) Any methodology used by an HMO to calculate reimbursements of non-network physicians or providers for covered services not available from network physicians or providers must comply with the following:
  (1) if based on usual and customary charges, then the methodology must be based on generally accepted industry standards and practices for determining the customary billed charge for a service, and fairly and accurately reflect market rates, including geographic differences in costs;
  (2) if based on claims data, then the methodology must be based on sufficient data to constitute a representative and statistically valid sample;
  (3) any claims data underlying the calculation must be updated no less than once per year and not include data that is more than three years old; and
  (4) the methodology must be consistent with nationally recognized and generally accepted bundling edits and logic.

Source Note: The provisions of this §11.1611 adopted to be effective August 1, 2017, 42 TexReg 2169