Legislative Advocacy:
Preauthorization:
Preauthorization requirements continue to place unnecessary burdens on physicians and negatively impact patients. Reducing or eliminating these requirements remains a top priority, and HCMS and the TMA continue to pursue legislative relief at both the state and federal levels.
- At the 2021 Texas legislative session, HCMS and TMA secured a major victory for physicians with the passage of HB 3459, which curbs burdensome prior authorization practices. Under the law, physicians in state-regulated commercial health plans qualify for “gold carding” on a rolling six-month basis if 90% or more of their prior authorizations for a specific procedure have been approved in the previous six months—applied separately by procedure and by health plan. Another key provision requires that utilization reviews be conducted by a Texas-licensed physician in the same or a similar specialty.
- At the federal level in 2022, Representatives Vicente Gonzalez (D-TX) and Michael C. Burgess, M.D. (R-TX) introduced H.R. 7995, the Gold Card Act of 2022, which would exempt qualifying physicians from preauthorization requirements under Medicare Advantage plans. On May 23, 2022, HCMS met with Congressman Burgess to share our experience with health plans’ opposition to the Texas law and to advise him on potential challenges at the federal level. Passage of this legislation would be a major step toward reducing the heavy administrative burden of preauthorizations and the resulting negative impact on patient care.
- In 2024, HCMS submitted, and TMA House of Delegates adopted, resolution 401 to the TMA House of Delegates to further enhance the state's Gold Card regulations in an effort to provide transparency in the review process and provide to physicians the review data to ascertain if a gold card review should have been granted.
- In the 2025 Texas legislative session, HB 3812 was passed to amend the Texas Gold Card legislation passed in 2021 aiming to increase physicians’ likelihood of earning Gold Card status. The bill extends the evaluation period for “gold card” preauthorization exemptions from 6 months to 1 year, codifies the minimum threshold of five services, and allows physicians to aggregate preauthorization approvals across affiliated insurance plans.
No Surprises Act - TMA vs HHS lawsuits (TMA I-IV):
- TMA I, filed in October 2021, and which TMA won at the federal district court level – alleged that in the interim final rules governing federal arbitrations between insurers and physicians to address out-of-network payment disputes under the No Surprises Act, the agencies unlawfully required arbitrators to “rebuttably presume” the offer closest to the QPA was the appropriate out-of-network rate. The federal agencies did not appeal the district court’s decision. Instead, the agencies adopted new rules that were challenged in TMA II.
- TMA II filed in Sept. 2022, challenged the NSA’s August 2022 final rules published by the federal agencies, arguing that the final rules unfairly advantage health insurers by requiring arbitrators to give outsized weight or consideration to the QPA. The district court ruled in TMA’s favor on that case in January 2023. The federal agencies appealed the decision to the U.S. Court of Appeals for the 5th Circuit, which upheld TMA’s favorable district court decision in August 2024.
- TMA III filed in Nov. 2022, challenged the No Surprises Act’s interim final rules. The federal agencies involved – the U.S. departments of Health and Human Services, Labor, and the Treasury, along with the Office of Personnel Management – appealed the initial decision by the U.S. District Court for the Eastern District of Texas. That initial decision held in TMA’s favor that the federal rules unlawfully deflated the qualifying payment amount (QPA) that arbitrators consider, among other statutory factors, when resolving disputes over health plans’ payment for certain out-of-network care in federal arbitrations under the No Surprises Act by:
- Including “ghost rates” – or contract rates with physicians and other health professionals who don’t provide the particular service;
- Including rates of physicians who are not in the same or similar specialty as the physicians involved in the dispute;
- Requiring payers to use an amount other than the total maximum payment in calculating a QPA when a contracted rate includes contingent payments, such as risk sharing or incentive-based bonuses; and
- Permitting self-insured plans to essentially opt in to a lower QPA for payment disputes with physicians by using the rates of other self-insured plans.
Federal regulators dropped their appeal of two of the four provisions (ultimately only appealing the district court’s ruling prohibiting the inclusion of ghost rates and requiring the inclusion of bonus and incentive payments in QPA calculations). That left intact TMA’s district court win on two of its four challenges in this lawsuit. The U.S. Court of Appeals for the 5th Circuit then found in favor of the federal agencies on the remaining two issues. On order by the U.S. Court of Appeals for the 5th Circuit granting TMA’s petition for rehearing en banc in TMA’s third No Surprises Act (NSA) lawsuit, which vacates the circuit panel’s Oct. 30, 2024 opinion and will result in a hearing by the full panel of judges at a later date. On May 30, the U.S. Court of Appeals for the 5th Circuit granted the TMA’s petition for rehearing en banc, which vacates the circuit panel’s Oct. 30, 2024 opinion and will result in a hearing by the full panel of judges at a later date.
- TMA IV filed in January 2023, the district court ruled largely in TMA’s favor in August 2023. The federal agencies did not appeal this decision.
Tort reform:
In 2003 HB 4 and Prop 12 were introduced. This legislation resulted from years of effort by the medical communities, TMA, HCMS, TEXPAC, and others to create a fair and balanced judicial process in malpractice cases, and to de-incentivize claimants from filing frivolous lawsuits. This practice became so prevalent in the Texas Valley that physicians left the area en masse leaving a severe shortage of healthcare professionals to serve the community. In addition, physicians began leaving statewide as the cost of medical liability for Texas physicians skyrocketed, making it too costly to practice medicine in Texas. These resulting shortages prompted the need for the legislation which placed a cap on noneconomic damages at $250,000 for all physician defendants and an additional cap of $250,000 for each of up to two medical care institutions. Other previous plaintiff-friendly procedural devices, such as forum shopping, were eliminated. It also required that there be a written medical report by a physician in the same or similar field as the one being sued, a report that clearly identifies the appropriate standard of care and how it was violated, and a delineation of specific damages resulting from the violation of the standard. The passage of HB 4 removed the hostile litigation environment in Texas and stopped the exodus of physicians in search of a more judicially fair and friendly one. The number of physicians coming to practice in Texas has increased dramatically since the passage of the bill resulting in access to care in areas rural and border communities of Texas that was previously unavailable. Also, the number of liability carriers increased creating competition and better premium rates. Texas remains the premiere healthcare mecca in the country, and this legislation is partly responsible for this distinction. Note: Every Texas legislative session, Tort Reform is attacked by lobbies who are against this law. Defending Tort Reform is a priority for HCMS and TMA.
Payer Policy Advocacy:
In an effort to reduce costs, payers frequently implement policies to eliminate or significantly reduce payments for certain services. HCMS and the TMA continue to challenge payer policies that increase administrative burdens and erode physician reimbursements.
Incident to policies:
Payers continue to reduce services and payments in an effort to cut costs. Incident-to restrictions have become more prevalent adversely affecting practice work flows, patient access, and revenue streams.
- In December of 2020, United Health Care announced that for their commercial plans, APRNs who had their own NPI would be required to be credentialed and directly bill for their services even when performed incident-to, with reimbursement for such services at 85% of the contracted rate. This policy went into effect May 1, 2021. Incident-to services allow APPs to treat patients under the direct supervision of a physician without being required to be contracted with the health plan and receive reimbursement at 100% of the contracted rate. For several months HCMS and the TMA urged UHC to reconsider this policy as it would be disruptive to physician practices and patient care. As a result of these efforts, UHC reversed this restriction on incident-to billing in two policy notices (Advanced Practice Health Care Provider Policy, Professional #2021R5009B and the Services Incident-to a Supervising Health Care Provider Policy, Professional #2021R5025A). UHC will honor incident-to billing when the incident-to requirements are met. Such claims will be reimbursed at 100% of the applicable fee schedule. These new policies became effective 8/1/2021.
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In January 2021, BCBSTX issued a policy statement announcing it would stop paying for incident-to services and instead require board-certified Advanced Practice Provider’s to contract with the plan and bill directly under their own NPI numbers. This policy would result in a 15% reduction in reimbursement as claims billed under an Advanced Practice Provider’s NPI are typically reimbursed at 85% of the physician’s contracted rate. TMA and HCMS expressed strong concerns, noting that the change would end the widely used incident-to billing practice, disrupt established workflows, create financial burdens, and potentially affect patient care. As a result of this advocacy, in May, 2021, BCBSTX reversed course, announcing the policy would not be implemented and that there were no plans to adopt it in the future.
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In January 2025, Aetna announced a new reimbursement policy to reduce payment for incident-to services from 100% to 85% of the allowed amount. Following advocacy by HCMS, members of the AMA Simplification Workgroup, and other stakeholders, Aetna reversed the policy the following month.
Modifier 25 policies:
Payers continue to scrutinize the use of modifier 25, often updating their policies in ways that reduce reimbursement for these services. Protecting payment for modifier 25 remains a top priority for HCMS and other organizations. This modifier applies when an evaluation and management (E/M) service is billed on the same day as a minor procedure.
- In March 2023, Cigna announced a new policy that would reduce reimbursement for modifier 25 claims, increase administrative burdens, delay payments, and negatively impact physicians’ cash flow. The policy would require submission of medical records to confirm that modifier 25 criteria were met when appended to E/M codes 99212–99215. Thanks to advocacy efforts by HCMS, TMA, AMA, and numerous state medical societies and specialty organizations, Cigna delayed implementation of this policy and there has been no further information on its implementation. This was not Cigna's first attempt to reduce modifier 25 payment as Cigna tried to enforce the same requirements in June 2022, and coordinated efforts at that time also successfully postponed the change.
Other policies:
- Automatic E/M code downcoding- In April 2023, physicians began reporting down-coding of evaluation and management (E/M) claims by various payors including Wellcare, Cigna, Aetna, and UHC. These payors either automatically paid the claim at a lesser allowed amount associated with a lower E/M code level or requested medical records prior to downcoding the claims. Physicians complained that they were administratively unable to comply with the high volume of medical record requests, thus resulting in automatic claims denials or downcoding. Additionally, the remittances/EOBs on downcoded claims did not indicate they were paid at a reduced rate making it difficult to identify the underpayment and submit an appeal. In June 2023, HCMS collaborated with the AMA, the MGMA, and other state and specialty medical societies to coordinate efforts to address this practice. In May 2024, HCMS submitted Resolution - 403 to the TMA House of Delegates (HOD) requesting the TMA and AMA take action to ban automatic downcoding where it was adopted. The resolution was subsequently submitted for consideration at the June 2024 AMA HOD annual meeting where the resolution, Resolution - 714, was adopted. As a result, the AMA updated policy D-320.972 using language from the resolution. HCMS has continued its collaboration with the American Medical Association (AMA) to seek regulatory relief from the practice of automatic downcoding. As a direct result of these efforts, the AMA has developed model state legislation titled the Transparency in Downcoding Act which was distributed to all state medical societies on June 18, 2025 to support state-level legislative initiatives. In addition, the AMA is actively pursuing federal legislation and regulatory action to prohibit automatic downcoding in self-insured plans governed by ERISA.
- Requests for medical records - In May 2024, HCMS also submitted Resolution - 402 to address onerous and burdensome medical records requests in anticipation there would be an increase in such requests if our efforts to ban automatic downcoding were successful. It was adopted and subsequently taken to the AMA HOD and unfortunately, Resolution 715 was not adopted but instead confirmed existing policy. Advocacy efforts continue in regard to this issue.
- United Healthcare accumulator adjustment program- In January 2021, UHC announced a policy requiring providers to report any payment assistance from drug manufacturer copay coupon programs applied to a patient’s cost share when billing specialty medications as a medical benefit. Under this policy, coupon amounts would not count toward the patient’s deductible or out-of-pocket limit, effectively eliminating the coupon’s value. The reporting responsibility would fall on physicians, adding significant administrative burden and interfering with the patient-physician relationship. HCMS and other stakeholders strongly objected, citing the unpaid workload for physicians and the financial harm to patients who rely on coupons to access necessary medications. Without these discounts, many patients would face reduced access to effective, affordable treatments, potentially worsening their conditions and limiting physicians’ treatment options. In January 2022, in response to our concerns, UHC announced the program would not be implemented. During the 2023 Texas legislative session, HCMS played a key role in passing legislation to prohibit this practice.
- United Healthcare designated diagnostic provider - In 2021, UHC announced a policy requiring lab and radiology facilities to apply for Designated Diagnostic Provider (DDP) status as part of a cost-control effort. Under the policy, physicians would have to refer patients to DDP-approved providers for services to be covered. If a patient used an in-network provider without DDP status, UHC would pay nothing, leaving the patient responsible for the full cost of the services. HCMS, TMA, and other stakeholders raised strong objections, citing excessive administrative burdens, reduced in-network referral options, and an improper shift of cost-control responsibilities onto physicians. As a result of this advocacy, while the policy has been implemented in other states, it remains suspended in Texas.
- United Healthcare Optum Pay fees - In January 2021 physicians began experiencing significant problems with Optum Pay and were unable to obtain readable remittances or perform other revenue cycle functions available to them prior to the implementation of a new Optum Pay premium paid subscription service. UHC had assured that the main functions needed to conduct business with UHC would remain in the free version and the paid version would simply provide enhanced functionality. However, upon rollout, the functionality of the free version was greatly reduced, and physicians reported to HCMS that they were experiencing several issues. They were unable to obtain readable remittances or perform other revenue cycle functions available to them before the implementation of the Optum Pay Premium paid subscription service. This caused significant business interruptions, the need for additional and complicated work-arounds, payment and banking reconciliation disruptions, and other revenue cycle management difficulties. HCMS reached out to UHC on several occasions to report these issues and provided examples of problems experienced by physicians in Harris County and across the nation. As a result of our efforts and those of other organizations, UHC restored access to the essential functions in the free version of Optum Pay allowing physicians to continue to manage their UHC business without having to pay for the premium service.
- United Healthcare malpractice liability limits increase - In December 2020, HCMS learned UHC would require an increase in liability limits from $100,000/$300,000 to $1 million/3 million, which was set to take effect March 1, 2021. HCMS reached out to UHC and advised them that Texas enacted tort reform in 2003 (see Tort Reform section) to limit frivolous lawsuits and placed a cap on noneconomic damages at $250,000. As such, liability limits at $1 million/3 million were unnecessary in Texas and caused an economic burden to our physicians. As a result of these efforts, UHC indefinitely postponed the requirement. However, HCMS continues to monitor any changes in liability limits by payors to ensure they are appropriate for our physicians.
- Newborn screening underpayments - In 2020, HCMS became aware of systematic underpayments for the state-mandated newborn screens by several commercial and Medicaid Managed Care payors. Each of these payors were contacted by HCMS and made aware of the underpayments in violation of state law. However, most of these payors were unaware such a law existed and based their reimbursement methodology on a percentage of billed charges. HCMS provided the applicable state regulations and other documentation that mandates that the reimbursement rate for newborn screens be equal to that provided by the Department of State Health Services. As a result, these payors reprocessed claims for several physicians and updated their claims systems to reflect the correct reimbursement amount.
Miscellaneous:
- Wellcare Texan Plus CMS complaint – In January 2019 HCMS received a high number of complaints regarding Texan Plus and Wellcare. The migration of Texan Plus physicians to the Wellcare system failed, and as a result, the affected physicians could not access the portal, verify eligibility and benefits, obtain authorizations or referrals online or by phone, or conduct any business online. Payments to physicians were also delayed, incorrect, or denied, and seeing Texan Plus patients became difficult. Many physicians and patients had to cancel appointments and procedures until they received instructions from Wellcare. Unfortunately, the instructions they received were inconsistent and often incorrect. HCMS met with Wellcare leaders to discuss the issues and find a work-around until these physicians could be manually loaded into Wellcare’s system. Corrective action was slow despite several meetings with the Houston market and corporate Wellcare leadership, and physicians and patients suffered. As a result, HCMS filed a complaint with the Atlanta CMS Regional Office to find a resolution to the surfeit of problems that continue to affect physicians and their patients.
- TxEver death certificate registration system-The Texas Department of State Health Services created a new death certificate registration system, TxEVER, which went live Jan. 1, 2019. After going live, the system was plagued with technical issues which caused many physicians to exceed the 5-day window to file a death certificate. HCMS took action and met with Texas Department of State Health Services representatives to discuss the issues. As a result, HCMS created a list of FAQs specifically designed to address your concerns about the new system and DSHS worked to address the system errors.
- Molina TDI complaint – In 2018, HCMS received an unusually high number of complaints from members regarding Molina Marketplace payment issues amounting to millions of dollars. Many large and small practices had been attempting to resolve their issues as far back as 2015, to no avail. Many filed complaints with the Texas Department of Insurance (TDI), but after the lack of responsiveness from both Molina and TDI, physicians turned to HCMS for help. HCMS reached out to its Molina contacts to try and resolve the issues, but like the membership, we too experienced a lack of response. Consequently, HCMS filed a TDI complaint against Molina in September 2018 on behalf of the affected practices. As a result, Molina’s CEO contacted HCMS to set up a meeting to discuss the issues. During the meeting, they committed to be the point of contact to resolve all issues with the assistance of their COO. Individual meetings were arranged at the HCMS offices in November 2018 with the Molina COO and all of the affected practices who had contacted HCMS for assistance. Our efforts resulted in collections of more than $2,000,000 for the affected physicians. In February 2019, as a result of the HCMS complaint to TDI, TDI issued a Consent Order fining Molina $500,000 and requiring them to address their deficiencies.
- Aetna TDI complaint – In late 2018, several physicians contacted HCMS regarding letters from Aetna informing them they were being deselected from 3 Aetna plans. As there was a fully-insured plan included, the deselection process from that plan violated the Texas Insurance Code, particularly sections 1301.0057 and 1301.0057, regarding physician termination. As such, HCMS filed a complaint with the Texas Department of Insurance (TDI) resulting in the removal of the fully-insured plans from the deselection notice. HCMS then met with Aetna representatives to better understand the criteria used to identify physicians for the systematic deselection. HCMS provided information that revealed that several of the physicians who contacted us did not meet those criteria. As such, Aetna reconsidered and pended or rescinded the deselections for several physicians.