(a) Written agreement between the HMO and the indemnity carrier. A POS plan offered under this subchapter must be evidenced by a written agreement between the HMO and indemnity carrier that must be filed with the department as a plan document and must provide the following:      
        (1) the identity of each entity, including the HMO, the indemnity carrier, or any third-party administrator (TPA) that will administer the coverages offered under the POS plan;       
        (2) all duties of the HMO and indemnity carrier to each other relating to the POS plan issued under this subchapter;       
        (3) all costs allocable to the HMO or the indemnity carrier relating to the POS plan;       
        (4) the HMO's network of providers and, if the POS indemnity coverage includes preferred provider benefits, as allowed by Insurance Code Chapter 1301 and applicable rules, the indemnity carrier's list of preferred providers, which may not be identical; and       
        (5) the respective premium rates for the POS HMO coverage and for the POS indemnity coverage must be derived separately by the HMO and the indemnity carrier and must be separately identified in each POS plan contract; however, the agreement may provide that for a POS plan offered by the entities under this subchapter:                  (A) the HMO, the indemnity carrier or a TPA may collect the premiums for both coverages;                   (B) the purchaser may issue one payment for both coverages; and                   (C) the entity delegated to collect the premium will then disburse the appropriate premium to the other party or parties;         
        (6) premium rates charged by the HMO must be based on the actuarial value of the POS HMO coverage and may be different from the premium rates charged by the indemnity carrier, which must be based on the actuarial value of the POS indemnity coverage offered by the indemnity carrier;       
        (7) the HMO and indemnity carrier must maintain separate books and records for the POS plan, including but not limited to information regarding premiums, lists of covered persons, claim payment data, complaint records, maintenance tax records, and all other books and records required to be maintained by law or rule;       
        (8) neither entity may use the other to perform functions or duties that are its own responsibility by law or rule, including but not limited to making all reports and filings required by law or rule;       
        (9) the entities may delegate those functions or duties permitted by law or rule to be delegated to another party to perform, including but not limited to contracting with providers, administering claims, and conducting grievance procedures, provided that the delegating entity remains responsible for ensuring that all delegated functions are conducted in compliance with all applicable laws and rules;       
        (10) the agreement between the indemnity carrier and the HMO may not be canceled or terminated until the coverage for each enrollee in a POS plan issued by both the indemnity carrier and HMO is terminated or canceled according to the provisions of this subchapter; and       
        (11) the arrangements to be made in the event of insolvency, loss of certification or any other circumstances affecting the ability of the indemnity carrier, the HMO, or both to comply with this subchapter.       
      (b) Basic requirements. In addition to complying with all of the requirements listed in subsection (a) of this section, a contract creating a POS blended contract plan and contracts that together create a POS dual contracts plan must provide the following:      
        (1) enrollees may not be required to first use either the POS indemnity coverage or POS HMO coverage;       
        (2) if the premiums necessary to maintain both the POS HMO coverage and the POS indemnity coverage are not paid, both coverages will be cancelled simultaneously, and any premium the enrollee has remitted to maintain coverage will be returned to the enrollee;       
        (3) the POS HMO evidence of coverage must include all mandatory HMO coverages and the POS indemnity coverage must contain all mandatory indemnity coverages;       
        (4) corresponding coverage for a POS plan must include the following:                  (A) all mandatory benefit offers required by the Insurance Code that are accepted or rejected by the purchaser must also be accepted or rejected in the same manner with respect to both the POS HMO and the POS indemnity coverage;                   (B) benefits under the POS HMO coverage may not be reduced by the benefits received under the POS indemnity coverage; and                   (C) benefits for POS indemnity coverage under the plan may be reduced by benefits received under the POS HMO coverage.         
        (5) if medically necessary covered services, benefits, and supplies are not available through the HMO's participating physicians or providers, the HMO is not relieved of its obligation to provide out-of-network services under Insurance Code Chapter 1271 on the basis that the same services are available to an enrollee through POS indemnity coverage; and       
        (6) each POS contract must identify the respective premium rates for the POS HMO coverage and for the POS indemnity coverage, as well as the name and address of the entity to whom the premiums must be paid.       
      (c) POS blended contracts. Contracts for POS blended contract plans must:      
        (1) list all POS HMO coverage;       
        (2) specify how services, benefits and supplies under the POS HMO coverage are accessed;       
        (3) list all POS indemnity coverage;       
        (4) specify how claims are made for POS indemnity coverage;       
        (5) disclose all copayments required;       
        (6) disclose all coinsurance required for POS indemnity coverage, which must never exceed 50% of the total amount to be covered;       
        (7) disclose all deductibles required;       
        (8) disclose all precertification requirements for POS indemnity coverage under the plan including any penalties for failing to comply with any precertification or cost containment provisions, provided that any such penalties do not reduce benefits by more than 50% in the aggregate;       
        (9) disclose how the enrollee may complain about a denial of coverage and appeal an adverse determination rendered concerning the coverage under the POS plan and disclose any rights the enrollee may have to an independent review of an adverse determination under Insurance Code Chapter 4201;       
        (10) POS indemnity coverage issued to a group must contain provisions that comply with Insurance Code §§1251.111 - 1251.116; and       
        (11) POS indemnity coverage issued to an individual must contain provisions that comply with Insurance Code §§1201.111 - 1201.217.       
      (d) POS dual contracts. Contracts comprising a POS dual contract plan must comply with the following:      
        (1) The contract issued by the indemnity carrier must comply with all applicable requirements for indemnity carriers and must:                  (A) list all indemnity coverage;                   (B) specify how claims are made;                   (C) disclose all applicable copayments and coinsurance, which must never exceed 50% of the total amount to be covered;                   (D) disclose all applicable deductibles;                   (E) disclose all precertification requirements for POS indemnity coverage under the plan, including any penalties for failing to comply with any precertification or cost containment provisions, provided that any such penalties must not reduce benefits more than 50% in the aggregate;                   (F) disclose how the enrollee may complain about a denial of coverage and appeal an adverse determination rendered concerning the coverage under the POS indemnity coverage and disclose any rights the enrollee may have to an independent review of an adverse determination under Insurance Code Chapter 4201, if applicable;                   (G) POS indemnity coverage issued to a group must contain provisions that comply with Insurance Code §§1251.111 - 1251.116;                   (H) POS indemnity coverage issued to an individual must contain provisions that comply with Insurance Code §§1201.111 - 1201.217.         
        (2) The contract issued by the HMO must comply with all requirements for an HMO evidence of coverage and must:                  (A) list all covered services, benefits and supplies;                   (B) specify how covered services, benefits and supplies are accessed by the enrollee; and                   (C) disclose all applicable copayments.         
      (e) Filings. All plan documents for a POS plan offered under this subchapter must be submitted to the department in accordance with:      
        (1) Insurance Code Chapter 1271 and Chapter 11 of this title (relating to Health Maintenance Organizations), including the filing fee requirements; and       
        (2) Insurance Code Chapter 1701 and Chapter 3, Subchapter A, of this title (relating to Submission Requirements for Filings and Departmental Actions Related to Such Filings), including the filing fee requirements.       
     Source Note:        The provisions of this §21.2902 adopted to be effective July 10, 2001, 26 TexReg 5012; amended to be effective November 7, 2021, 46 TexReg 7408