May 2022 • DALLAS MEDICAL JOURNAL | 27
the physician into a difficult position of the
most expensive and time-consuming option,
which is litigation. This should not be the case.
The legislature needs to fund TDI to have the
resources and accountability to enforce TDI
rules, to track bad faith acts and determine
patterns quickly, and to disclose these formal
complaints and penalties in a quarterly and
annual report. Further, both legislative action
and TDI rulemaking needs to spell out
additional bad faith actions by health plans
during TDI IDR with more specificity on what
defines bad faith by the health plan and the
specific penalties that should result. Bad faith
acts under S.B. 1264 subchapter C currently
only include:
1. Failing to participate in an informal
teleconference.
2. Failing to provide information to the
arbitrator.
3. Failing to have a representative with
“full authority.”
It is also noted that the arbitrator is not
required to consider these bad faith acts in
their decision. And if a bad faith act(s) occurs
by the health plan, the arbitrator does not
have to give a decision to the provider even if
the bad faith act gave the health plan a distinct
advantage in the IDR process. This needs
to change; the arbitrator should be able to
examine a formal complaint made during the
IDR process. The authority for arbitrators to
rule in the favor of a party if bad faith occurs
by the opposition needs to be added by the
legislature.
If TDI observes a pattern of bad faith from
a payer, immediate administrative penalties
for the following repeated bad faith actions or
inactions by health plans should occur with an
escalating protocol. For the health plan, the
following additional bad faith actions should
be added:
1. Not responding to communications
from the physician, the arbitrator, or
TDI during the IDR process.
2. Not entering information
into the TDI portal
from the best and final
offer results during the
informal teleconference.
(Currently only
the health plans enter
information for both
parties.)
3. Entering incorrect
information into the TDI
portal.
4. Issuing a denial on the
claim after an arbitration
ruling.
5. Not paying the amount
ruled on by the arbitrator.
6. Not paying at all following
arbitration.
7. Paying late following an
arbitration.
8. Concealing their eligibility
for TDI IDR by not
placing the TDI/DOI/
ERS/TRS on the policyholder’s
insurance card.
9. Fraudulently evading TDI
IDR (reporting a claim as not eligible
for TDI IDR) resulting in TDI kicking the
physician’s claim out of the process.
10. Attributing inappropriate amounts to
patient responsibility.
11. Denying a plan is regulated by TDI IDR
when in fact it is.
12. Engaging in ex parte communications
with the arbitrator.
In addition, there are improvements needed
of the TDI IDR portal:
1. The ability of each party to enter in its
own best and final offer into the TDI
portal. Currently only the health plans
are allowed to do this.
2. All communications including recorded
informal teleconference calls between
the two parties should be included in
and through the TDI portal, including
uploaded position statements to arbitrators
and payment to arbitrators. This
will eliminate missed emails blocked by
spam filters and missed payments lost
in the mail.
3. The TDI portal should function as a
repository for formal complaints to
the TDI enforcement division through
the TDI IDR portal that incorporates
all of the information included in an
arbitration if a complaint is filed by a
physician.
Finally, there are arbitration process improvements
needed as well:
1. The requirement for equal weight of
each point in the IDR process.
2. Rationale to be explained by the arbitrator
on each point of the ruling.
3. The expansion of arbitrator qualifications
to include those with healthcare
experience.
4. A solution to address the rising cost
of arbitrators (arbitrator prices have
reached up to $5,000 per arbitration).
5. A lift on the cap of batches of claims
in each arbitration from $5,000 to
$50,000 per arbitration.
Regulatory Action
On the regulatory side, TDI needs to report
on the health plans in a quarterly and annual
report that identifies those being taken to
arbitration and mediation, and what their
overall number of claims and percentage of
claims are in that timeframe.
TDI should also report on the number of
complaints against health plans in the TDI IDR
process and categorize those complaints with
numbers and percentages as well as administrative
penalties dispensed by TDI, reported in
quarterly and annual reports.
Finally, we need to encourage TDI to
pursue its certificate requirement for any
out-of-state health plans. Under this action
if an “out-of-state” plan has even a single
employee working in the state of Texas, they
would be required to participate in the TDI
IDR process. This makes it more difficult for an
insurer to evade TDI IDR by moving its plans
out-of-state to a state with laws that favor
the health plan.
Legislative Action
Lastly, we need the state legislature to create
legislative solutions to provide an opt-in
process for ERISA plans into the TDI IDR process,
which will keep greater control of Texas’s
healthcare future in the hands of Texans. We
also need health plans to prove network adequacy
per geozip.
In conclusion, Texans need to secure their
healthcare future by not leaving it in the
hands of the federal government, which will
destabilize small- and intermediate-sized
medical practices first, followed by large
group and academic practices over the coming
year. This will lead to dramatic and sudden
loss of access to Texas patients. This can be
accomplished by improving and expanding
Texas Senate Bill 1264 through additional
legislation and TDI regulations. DMJ