Lt. Gov. Dan Patrick is threatening to wage war against the Texas Medical Board over a rule the board has proposed that he says would undermine a new law that cracks down on surprise medical bills.


But officials with the Texas Medical Board told the American-Statesman on Wednesday that it is not their intention to weaken the law.


The Texas Senate, led by Patrick, approved legislation earlier this year — signed into law by Gov. Greg Abbott — that prevents patients with state-regulated health insurance and who have no choice in selecting medical providers from paying exorbitant medical bills for out-of-network services. Instead, insurers and doctors will negotiate how to pay the non-patient share of the costs. The law takes effect Jan. 1.


Earlier this month, however, the Texas Medical Board, which regulates medical practices in the state, publicly proposed a rule that patient advocates have said would create a loophole in the law. The rule, which is set to be adopted Dec. 8, would require physicians to provide patients who are set to undergo a non-emergency medical procedure with a waiver outlining out-of-network charges and agreeing to pay those charges. Patient advocates fear the rule as written would allow surprise billing to occur in all non-emergency health services.


"After passing the strongest ‘surprise billing’ protections in the nation, I am not happy to learn that attempts may be being made at the Texas Medical Board to create a loophole to undermine this important law. Senators are not happy either," Patrick said in a statement on Tuesday.


Patrick continued by saying that "it is unlikely the votes would be there to confirm new interim appointments or approve the reappointment of any member who votes to circumvent the intent of clearly written legislation." The Senate approves all appointments to the board.


Sherif Zaafran, president of the Texas Medical Board, said the board intended the proposed rule to follow Senate Bill 1264, which had tasked the board to create an opt-out form for patients in very narrow circumstances who want to use out-of-network physicians for a non-emergency procedure. The board’s intention was not to create a blanket requirement that all patients in non-emergency procedures be asked to sign a waiver, Zaafran said.


The board will review the rule and public comments on it at its Dec. 6 meeting. Direction to staff for any revisions could come at that time, board Executive Director Brint Carlton said.


"What we have been very mindful of doing, to the contrary of what’s been out there, is we’re actually trying to narrow the scope of the opt out to make sure it’s not easy, that it’s only the exception and not something that is commonly used and that’s based on direction from (the bill’s authors)," Zaafran told the Statesman.


Concerns with the proposed rule


Surprise medical bills are usually high-dollar charges for medical services that patients didn’t know were outside of their health insurance network. They commonly occur in emergency situations; with specialist physicians during non-emergency procedures; in freestanding emergency rooms; and during ambulance rides. A combination of factors are to blame for surprise bills, including the growing cost of health care and breakdowns in negotiations between insurers and physicians.


The Texas Medical Board’s rule would require the waiver, which would include an estimate of out-of-network charges, at least 10 business days prior to the procedure. Patients must be given until three days before the procedure to agree.


John Ford, spokesman for the Texas Association of Health Plans, fears that if the proposed rule is not clarified by the Texas Medical Board, patients would be forced to waive away their rights to a mediation process that currently exists for certain patients to protest their surprise bills.


"The way they have written the proposed rule is it looks like at best the rule encourages providers and at worst, it actually requires providers to give a form to patients — this is for non-emergency care — that if signed would waive the surprise billing protection that (SB) 1264 gave them, and would actually go further than that … would waive mediation protection rights," Ford said.


Blake Hutson with AARP Texas, which was among the most fervent supporters of SB 1264, questions the accuracy of estimates for out-of-network charges. He fears patients would continue to be surprised with bills after a procedure.


"In order to do that accurately, the physician is going to need to call the patients’ health plan, find out what that reimbursement is going to be … find out how much the patient has paid for the deductible and coinsurance and do the math and give a patient a real estimate," Hutson said.


If the patient doesn’t sign the waiver it would be up to the physician to decide whether to continue with the procedure.


Rep. Tom Oliverson, R-Cypress, who carried SB 1264 in the House, told KUT this week that he wasn’t as concerned about the proposed rule, adding the Legislature could fix the board’s rule if it causes concerns.


Physicians and surprise bills


Zaafran said the bill also tasked the board with developing further protections for patients. The board will determine whether doctors are abusing the use of the waivers and report them to the Texas Attorney General’s Office.


"It was very intentional it was not going to be a mechanism or a business practice that certain physicians can use as a way to be out of network" and to hit patients with surprise bills, Zaafran said.


The Texas Medical Association was among the last stakeholders to support the bill during the legislative session.


Some large practices prefer to be outside the network of providers’ health plans so they can charge higher fees to patients, Hutson said. Meanwhile, insurance companies prohibit in-network physicians from charging additional fees to patients.


"The physicians that are the sinners of surprise medical bills are physician groups that are owned by private equity firms. This is big money business in health care and it’s patients versus private equity firms, not patients versus physicians here," Hutson said.


The Texas Medical Association has said there are only a handful of physicians in Texas who prefer to be outside of provider networks so they can charge exorbitant fees to patients.


Zaafran, a Houston area anesthesiologist, said physicians also don’t want patients to be caught by surprise billing, also called balanced billing.


"What the concern was though is that if in the process of banning balanced billing, there is no ability for a fair negotiation to happen between two entities that were not able to come to some type of contractual agreement, that a mechanism for a fair payment would be made," Zaafran said.