Part 1.
TEXAS DEPARTMENT OF INSURANCE
Chapter 21.
TRADE PRACTICES
Subchapter T. SUBMISSION OF CLEAN CLAIMS
28 TAC §§21.2803 - 21.2807, 21.2809, 21.2811, 28.2815 - 21.2820
The Texas Department of Insurance (Department) proposes amendments
to §§21.2803 - 21.2807, 21.2809, 21.2811, 21.2815, and new §§21.2816
- 21.2820 concerning the submission of clean claims to health maintenance
organizations (HMOs) and insurers who issue preferred provider benefit plans
(preferred provider carriers). The purpose and objectives of the proposed
revised and new sections are to further clarify and delineate requirements
relating to submission and payment of clean claims.
These sections are necessary to provide greater clarity and more specificity
in prompt payment procedures and will more fully implement legislation enacted
by the 76th Legislature in House Bill 610, as contained in Texas Insurance
Code Articles 3.70-3C §3A and 20A.18B.
House Bill 610, which became effective on September 1, 1999, basically
gives HMOs and preferred provider carriers 45 days to pay or deny, in whole
or in part, "clean claims" submitted by contracted physicians and providers.
In addition, an HMO or preferred provider carrier that acknowledges coverage
but intends to audit a claim is required to pay 85% of the contracted rate
within the statutory claims payment period. House Bill 610 gives the Department
the authority to determine, by rule, what constitutes a "clean claim." It
further gives the Department authority to adopt rules as necessary to implement
the statutory requirements.
On December 17, 1999, the Department proposed rules to provide definitions
and procedures for determining and paying clean claims, which were adopted
by order dated May 23, 2000. A revision to the sections concerning data elements
and audit procedures was adopted by order dated February 14, 2001. In the
original rule's adoption order, the Department, in responding to comments
on various sections of the rule, stated its intent to monitor complaints and
acknowledged that further agency action could be necessary to further refine
clean claims submission and payment procedures as contemplated in House Bill
610.
The Department has noted a significant increase in the number of complaints
received from physicians and providers involving delays in claims payment.
These complaints, coupled with the Department's continuing communication with
the physician and provider community, as well as with HMOs and preferred provider
carriers, indicate a need to further refine the rule to ensure that the original
intent of House Bill 610 - the timely and efficient payment of clean claims
- is being implemented.
The Department recognizes that future, additional rulemaking may be necessary
to address ongoing concerns that have been or will be raised regarding implementation
of House Bill 610 and other issues concerning physicians and providers and
HMOs and preferred provider carriers. However, the current proposal reflects
the Department's efforts to resolve recurring issues regarding prompt payment
of clean claims.
The proposed amendment to §21.2803, which sets out the elements of
a clean claim, clarifies that while attachments and additional elements can
be required as part of a clean claim, such requests by HMOs and preferred
provider carriers for required attachments and additional elements must be
for documents which are contained within the physician's or provider's medical
file. The Department has received numerous complaints from physicians and
providers indicating that HMOs and preferred provider carriers are requiring
documents that may be inaccessible to the physician or provider, such as police
reports, documents from the registrar's office at colleges and universities,
and tax statements from enrollees and insureds. For this reason, the Department
believes that this section should be clarified. In the adoption order of the
original rule, the Department recognized, in response to comments, that HMOs
and preferred provider carriers would on occasion require information, such
as police reports, which would be needed to resolve coverage issues. However,
the adoption order made clear that the Department would monitor complaint
trends and take appropriate action, if necessary.
The proposed amendments to §§21.2804 - 21.2806, which relate
to required disclosures, further clarify that the disclosure of data elements,
attachments, and additional clean claim elements must conform with the disclosure
formats of proposed §21.2818. The proposal also clarifies that an HMO
or preferred provider carrier must give the 60 day disclosure of required
data elements, attachments or additional clean claim elements. The Department
has received many complaints from providers and physicians who received the
disclosure pursuant to §21.2804 or §21.2805, but had claims rejected
before the end of the 60 days for failing to include the attachment or additional
clean claim element referenced in the disclosure. The proposed amendments
do not change the current practice, but further reinforce the language in §§21.2804
- 21.2806.
The proposed amendment to §21.2807 clarifies that the statutory claims
payment period begins upon receipt of a claim at the address designated by
the HMO or preferred provider carrier to receive claims. Regardless of whether
the recipient of the claim is a delegated claims processor, or some other
entity the HMO or preferred provider carrier designates, such as a clearinghouse
or repricing company, receipt of the claim will begin the statutory claims
payment period.
The proposed amendments to §21.2809 clarify the audit process utilized
by HMOs and preferred provider carriers by providing a specific time limitation
of 180 days to complete the audit process. In the original rule's adoption
order, the Department stated its belief that since it was in the HMO's or
preferred provider carrier's interest to quickly audit claims, it was not
necessary at that time to implement a time frame. However, the Department
has become aware of numerous complaints from physicians and providers alleging
that clean claim audits by HMOs and preferred provider carriers are exceeding
reasonable time frames. These complaints indicate a need to further refine
the audit process to facilitate the timely and efficient payment of claims.
It is the Department's understanding that the majority of audits are routinely
completed in substantially less time than 180 days, and that a very small
percentage of claims require 180 days to complete. The Department has proposed
a maximum 180 day time frame as an outside limit, which it believes will provide
HMOs and preferred provider carriers sufficient time to complete an audit.
The Department expects that HMOs and preferred provider carriers will complete
audits and make additional payments or request refunds within a much shorter
time frame than the maximum number of days. The proposed amendments also provide
that payments made to comply with the audit process are not admissions of
liability on a claim, which replaces a similar provision in the current rule,
and that an HMO or preferred provider carrier can continue to investigate
claims past the audit period to determine its liability on those claims and
seek a refund, if appropriate.
The proposed amendment to §21.2811 states that the disclosure of information
regarding processing procedures to physicians or providers must conform with
the formats in proposed new §21.2818.
The proposed amendment to §21.2815, failure to meet the statutory
claims payment period, explains that while the HMO or preferred provider carrier
can contract with the physician or provider for a penalty rate for late payment,
the HMO or preferred provider carrier is required to pay the greater of the
full amount of the billed charges submitted on the clean claim or any contracted
penalty rate for the late payment. This is consistent with the requirements
of House Bill 610, which provides penalties for failure to comply. The Department
believes that clarification of this requirement is necessary, based on the
complaints the Department has received that some contracts between HMOs or
preferred provider carriers and physicians and providers contain nominal penalty
rates, which effectively circumvent the legislatively established incentive
for claims to be paid in a timely manner as established by House Bill 610.
The proposed amendment to §21.2815 also clarifies that if an HMO or preferred
provider carrier fails to pay a clean claim correctly or denies a valid clean
claim, that failure is considered a violation of Article 20A.18B(c) or Article
3.70-3C §3A(c). By failing to pay the clean claim correctly or by incorrectly
denying a valid clean claim, the HMO or preferred provider carrier has failed
to take any of the measures outlined in existing §21.2807 and §21.2809.
Proposed §21.2816, concerning date of claim receipt, clarifies how
the physician or provider can demonstrate that a claim has been received by
an HMO or preferred provider carrier. Although the Department did not include
a similar provision in the original rule, it has subsequently received numerous
complaints from physicians and providers who state that the HMO or preferred
provider carrier maintains it has not received a mailed claim, or that only
some claims sent were received. The proposed section provides a mechanism
to establish a rebuttable presumption of the receipt of a claim and clarifies
when the 45 day time period begins. For situations in which multiple claims
are included in one mailing or hand delivery, proposed §21.2816 outlines
a method for either party to identify individual claims sent in a single mailing
or delivery. By identifying in §21.2816 when a claim is presumed to have
been received by the HMO or preferred provider carrier, each party should
be able to ensure that claims sent are also received, which will result in
claims being paid in the appropriate time frame. The proposed section also
identifies the information that should be included in a claims mail log, if
a physician or provider chooses to maintain one, and includes an example form.
Proposed new §21.2817 outlines statutory and regulatory provisions
in Article 20A.18B, Article 3.70-3C and new proposed §21.2809 which cannot
be altered by contracts between the HMOs and preferred provider carriers and
physicians and providers. The Department has received reports that some contracts
between physicians or providers and HMOs and preferred provider carriers include
language which circumvents the intent of Article 20A.18B or Article 3.70-3C
by extending the 45 day time frame for paying clean claims or by limiting
a physician's or provider's right to reasonable attorney fees if the physician
or provider resorts to the judicial system to obtain payment for their services.
Proposed new §21.2818 clarifies that when a document containing a
required disclosure is sent by the HMO or preferred provider carrier to the
physician or provider, the document must contain a heading that demonstrates
that the document contains a disclosure. Proposed §21.2818 is designed
to address concerns that required disclosures may not be evident to the physician
or provider if it is contained in a document that fails to properly identify
its contents.
Proposed new §21.2819 provides that the proposed amendments and new
sections apply to claims filed for non-confinement services, treatment or
supplies rendered on or after September 5, 2001 and to claims filed for services,
treatments, or supplies for in-patient confinements in a hospital or other
institution that began on or after September 5, 2001.
Proposed §21.2820 provides for severability of the rule, and has been
renumbered to accommodate the new proposed sections in the rule. The proposed
repeal of §21.2816 is published elsewhere in this issue of the Texas
Register.
The Department will consider the adoption of the proposed amendments to §§21.2803
- 21.2807, 21.2809, 21.2811, 21.2815, and new §§21.2816 - 21.2820
concerning submission of clean claims by physicians and providers to HMOs
and preferred provider carriers in a public hearing under Docket Number 2490
scheduled for August 22, 2001, at 9:30 a.m. in Room 100 of the William P.
Hobby Jr. State Office Building, 333 Guadalupe Street in Austin, Texas.
Kim Stokes, Senior Associate Commissioner of Life, Health and Licensing,
has determined that for each year of the first five years the proposed sections
will be in effect, there will be no fiscal impact to state and local governments
as a result of the enforcement or administration of the rule. There will be
no measurable effect on local employment or the local economy as a result
of the proposal.
Ms. Stokes has determined that for each year of the first five years the
sections are in effect, the public benefits anticipated as a result of the
proposed sections will be that all clean claims are paid in a timely manner,
as required by House Bill 610, and that there will be a reduction in the number
of disputes between physicians or providers and HMOs and preferred provider
carriers. The proposed rules will clarify when the statutory time frames begin
and will more clearly define those elements that can be included in a clean
claim. By ensuring that HMOs and preferred provider carriers clearly identify
documents which contain disclosures related to claims, physicians and providers
will be able to more effectively incorporate the necessary changes to submit
a clean claim. The proposed rules rearticulate that before requiring an element,
the HMO or preferred provider carrier must provide 60 days notice of the new
element, which ensures that claims sent without the new element during the
60 days after the notice are promptly paid pursuant to statutory time frames.
The intent of the proposed rules is to minimize or eliminate disputes between
HMOs or preferred provider carriers and physicians and providers when a clean
claim is not paid correctly or when a valid clean claim is denied. Except
as specifically enumerated below, any cost to persons required to comply with
these sections each year of the first five years the proposed sections will
be in effect are the result of the legislative enactment of House Bill 610
and not the result of the adoption, enforcement or administration of the sections.
If an HMO or preferred provider carrier fails to comply with the required
time frames, House Bill 610 requires HMOs and preferred provider carriers
to pay the full amount of billed charges submitted on a clean claim or the
contracted penalty rate for late payment. Since House Bill 610 does not identify
which amount should be payable when an HMO or preferred provider carrier fails
to meet required time frames, it is necessary for the Department to utilize
its rulemaking authority under the statute to make that determination. Consistent
with the intent of House Bill 610 to facilitate prompt payment of clean claims
to physicians and providers and to discourage noncompliance, the Department
has determined that requiring HMOs and preferred provider carriers to pay
the greater of the full amount of billed charges submitted on a clean claim
or any contracted penalty rate for late payment will encourage prompt payment
of claims. Any costs associated with the failure to pay clean claims in a
timely manner is attributed to House Bill 610 and the provisions of House
Bill 610 which outline the result of failure to comply with required time
frames. The Department anticipates and contemplates compliance with the required
time frames. HMOs and preferred provider carriers that are in compliance will
not incur costs. The proposed rule will result in more efficient processing
of clean claims, which will benefit HMOs, preferred provider carriers, physicians,
providers, insureds and enrollees.
The proposed rules establish a means for a physician or provider to establish
a rebuttable presumption that a claim was received by an HMO or preferred
provider carrier, thereby reducing the need for multiple resubmissions of
the same claim and the use of personnel to track claims sent or received.
The proposed rules do not require that the claims mail log be maintained,
and the Department believes that most physician or provider practices currently
have a method for keeping track of claims sent by mail or hand delivery. The
proposed rule does not require HMOs and preferred provider carriers to use
the claims mail log. The proposed rule provides a mechanism for HMOs and preferred
provider carriers to verify that the mailed or hand delivered claims include
the claims identified in the claims mail log. This allows the HMO or preferred
provider carrier to contact the physician or provider about any claims that
may or may not have been included with the mailed or hand delivered claims.
The anticipated result will be that claims will not be missed and will be
paid within the required time frames. If an HMO or preferred provider carrier
does not have a process in place to coordinate faxed claims mail logs with
mailed or hand delivered claims, the HMO or preferred provider carrier may
choose to implement a process. Based on discussions with industry, the Department
anticipates that the cost of personnel necessary to process claims mail logs
would be one full-time employee paid at $25,000 per year processing claims
mail logs for every 150,000 enrollees. The actual cost would vary depending
on how many claims are filed in a given time frame and whether there is currently
adequate personnel who could include claims mail log processing within their
job activities. The cost would also vary from carrier to carrier, based on
enrollment and the type of carrier.
The proposed rules also establish specific time frames for completing the
audit process and either issuing subsequent payment or recouping refunds based
on audit results. Since House Bill 610 established an audit process, any economic
costs of performing an audit are the result of the legislative enactment of
House Bill 610 and not the result of the adoption, enforcement, or administration
of the amendments. However, since the proposed rules specify when the audit
process ends, it is possible that on very limited occasions, some HMOs and
preferred provider carriers could incur costs associated with the timely completion
of the audit process. Auditing costs will vary depending on the number of
claims audited by the preferred provider carrier or HMO. Based on discussions
with industry, it has been represented to the Department that a claims examiner
for an HMO or preferred provider carrier with limited plan codes and/or sophisticated
computer systems can examine 100-150 claims per day. A claims examiner for
an HMO or preferred provider carrier with multiple plan codes and/or less
sophisticated computer systems can examine 50-75 claims per day. Information
obtained from the industry indicate that a claims examiner is paid an average
of $38,000 per year and that approximately 5% or less of claims require continued
examination following the 180th day after receipt by the HMO or preferred
provider carrier. Total costs attributed to the specified time frame for completing
the audit process will vary based on the number of claims examined and whether
adequate personnel are already in place to perform claims examination. Costs
will also vary depending on the number of claims an HMO or preferred provider
carrier will choose to audit 45 days after receipt.
House Bill 610 requires that upon completion of the audit process an additional
payment would be made to the physician or provider or that a refund would
be due to the HMO or preferred provider carrier within 30 calendar days. By
imposing a specific time frame on the audit process, it is possible that on
very limited occasions, the HMO or preferred provider carrier will lose the
time value of the additional payment amount made within 30 days of the completion
of the audit until the day the carrier determines it was not liable. The loss
of the time value of the additional payment will vary depending on the number
of claims the HMO or preferred provider carrier will continue to investigate
after the 180th day and on the number of those claims for which the HMO or
preferred provider carrier determines it was not liable. The additional payment
is based on a percentage of the contracted benefit amount for the claim; therefore,
the loss of the time value of the additional payment will vary depending upon
the contracted benefit amount of the claim. Since each claim is examined individually,
and each claim is for different amounts, it is not possible for the Department
to estimate by precise dollar amount how much in additional payments may be
made by the HMO or preferred provider carrier within the 30 days of the completion
of the audit process.
The cost per hour of labor or loss of time value on additional payments
will not vary between the smallest and largest businesses, assuming that HMOs
and preferred provider carriers which qualify as small or micro businesses
deal with approximately the same percentage number of mailed or hand delivered
claims. There is no anticipated difference between the costs of personnel
necessary to audit claims for micro, small or large HMOs and preferred provider
carriers, since the cost is proportionate to the percentage of claims audited.
In addition, there is no anticipated difference between amounts of additional
payment for micro, small or large HMOs and preferred provider carriers since
the cost is proportionate to the amount of the audited claim. Therefore, it
is the Department's position that the adoption of these proposed sections
will have no adverse effect on small or micro businesses. Regardless of the
fiscal effect, the Department does not believe it is legal or feasible to
reduce or waive the requirement for small or micro businesses. To do so would
allow the differentiation of claims handling of small preferred provider carriers
and HMOs to the claims handling of large preferred provider carriers and HMOs.
To be considered, written comments on the proposal must be submitted no
later than 5:00 p.m. on September 4, 2001 to Lynda H. Nesenholtz, General
Counsel and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance,
P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comment
must be simultaneously submitted to Pat Brewer, HMO Project Director, Mail
Code 103-6A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas
78714-9104.
The amendments and new sections are proposed under the Insurance
Code Articles 20A.18B, 20A.22, 3.70-3C §3A, 3.70-3C §9 and §36.001.
Article 20A.18B(a) provides that a clean claim is determined under the Department's
rules and Article 20A.18B(o) provides that the commissioner may adopt rules
as necessary to implement the Prompt Payment of Physician and Providers section.
Article 20A.22(a) provides broad rulemaking authority of the Texas Health
Maintenance Organization Act. Article 3.70-3C §3A(a) provides that a
clean claim is determined under the Department's rules and Article 3.70-3C §3A(n)
provides that the commissioner may adopt rules as necessary to implement the
Prompt Payment of Preferred Providers section. Article 3.70-3C §9 allows
the commissioner to adopt rules to implement the provisions relating to Preferred
Provider Benefit Plans. Section 36.001 provides that the Commissioner of Insurance
may adopt rules to execute the duties and functions of the Texas Department
of Insurance only as authorized by statute.
The following articles are affected by this proposal: Insurance Code Articles
20A.18B and 3.70-3C
§21.2803.Elements of a Clean Claim.
(a)-(b)
(No change.)
(c)
Attachments. In addition to the required data elements
set forth in subsection (b) of this section, HCFA has developed a variety
of manuals that identify various attachments required of different physicians
or providers for specific services. An HMO or a preferred provider carrier
may use the appropriate Medicare standards for attachments in order to properly
process claims for certain types of services.
An HMO or a preferred provider
carrier may only require as attachments information that is contained in the
physician's or provider's medical file.
Before any attachments may be
required, the HMO or preferred provider carrier shall satisfy the notification
procedures set forth in §21.2804 of this title (relating to Disclosure
of Necessary Attachments).
(d)
Additional clean claim elements. Additional elements beyond
the required data elements and attachments identified in subsections (b) and
(c) of this section may be required. Before any additional clean claim elements
may be required, the HMO or the preferred provider carrier shall satisfy the
notification procedures set forth in §21.2805 of this title (relating
to Disclosure of Additional Clean Claim Elements).
An HMO or a preferred
provider carrier may only require as additional clean claim elements information
that is contained in the physician's or provider's medical file.
(e)-(g)
(No change.)
§21.2804.Disclosure of Necessary Attachments.
For attachments described in §21.2803(c) of this title (relating
to Elements of a Clean Claim) to be required as part of a clean claim, the
HMO or preferred provider carrier shall comply with
§21.2818 of
this title (relating to Disclosure Formats) and
paragraphs (1), (2),
or (3) of this section.
An
[
(1)
Written notice. The HMO or preferred provider carrier may
provide written notice to all affected physicians or providers that such attachments
are necessary. The notice shall identify with specificity the attachment(s)
required and must be received by the physician or provider at least 60 calendar
days before requiring such attachment as an element of a clean claim.
(2)
Manual or other document that sets forth the claims filing
procedures. The HMO or preferred provider carrier may provide updated revisions
to the physician or provider manual or other document that sets forth the
claims filing procedures. The revision shall identify with specificity the
attachment(s) required and must be received by the physician or provider at
least 60 calendar days before requiring such attachment as an element of a
clean claim.
(3)
Contract. The HMO or preferred provider carrier may provide
for such attachments to be required as part of a clean claim in the contract
between the HMO or preferred provider carrier and the physician or provider.
As a means of setting forth the attachments that are required as part of a
clean claim, the contract shall either identify with specificity the attachments
that are required as elements of a clean claim or reference the physician
or provider manual or other document that sets forth the claims filing procedures.
If the contract identifies with specificity the attachments that are required
as elements of a clean claim, the additional written notice as specified in
paragraphs (1) and (2) of this section is not required. If the contract references
the physician or provider manual or other document that sets forth the claims
filing procedures as a means of setting forth the attachments that are required
as part of a clean claim, the notice specified in paragraph (2) of this section
is required. If the contract provides for mutual agreement of the parties
as the sole mechanism for requiring attachments, then the written notice specified
in paragraphs (1) and (2) of this section does not supersede the requirement
for mutual agreement.
§21.2805.Disclosure of Additional Clean Claim Elements.
An HMO or preferred provider carrier may require additional elements
for clean claims beyond the required data elements and attachments identified
in §21.2803(b), (c) and (e) of this title (relating to Elements of a
Clean Claim). To require such additional elements as part of a clean claim,
the HMO or preferred provider carrier shall comply with
§21.2818
of this title (relating to Disclosure Formats) and
paragraphs (1), (2),
or (3) of this section.
An
[
(1)
Written notice. The HMO or preferred provider carrier may
provide written notice to all affected physicians or providers that such additional
elements are necessary. The notice shall identify with specificity the additional
required elements and must be received by the physician or provider at least
60 calendar days before the HMO or preferred provider carrier designates such
additional elements as a requirement of a clean claim.
(2)
Manual or other document that sets forth the claims filing
procedures. The HMO or preferred provider carrier may provide updated revisions
to the physician or provider manual or other document that sets forth the
claims filing procedures. The revision shall identify with specificity the
additional required elements and must be received by the physician or provider
at least 60 calendar days before the HMO or preferred provider carrier designates
such additional elements as a requirement of a clean claim.
(3)
Contract. The HMO or preferred provider carrier may provide
for such additional elements to be required in the contract between the HMO
or preferred provider carrier and the physician or provider. As a means of
setting forth the additional elements that are required as part of a clean
claim, the contract shall either identify with specificity the additional
required elements or reference the physician or provider manual or other document
that sets forth the claims filing procedures. If the contract identifies with
specificity the additional required elements, the additional written notice
as specified in paragraphs (1) and (2) of this section is not required. If
the contract references the physician or provider manual or other document
that sets forth the claims filing procedures as a means of setting forth the
additional required elements, the notice specified in paragraph (2) of this
section is required. If the contract provides for mutual agreement of the
parties as the sole mechanism for requiring additional clean claim elements,
then the written notice specified in paragraphs (1) and (2) of this section
does not supersede the requirement for mutual agreement.
§21.2806.Disclosure of Revision of Data Elements, Attachments, or Additional Clean Claim Elements.
An HMO or preferred provider carrier may revise its requirements for
data elements, attachments or additional clean claim elements that have previously
been properly included as elements of a clean claim pursuant to §§21.2803(b),
(c), (d), and (e), 21.2804, and 21.2805 of this title (relating to Elements
of a Clean Claim, Disclosure of Necessary Attachments, and Disclosure of Additional
Clean Claim Elements). To revise the requirements for data elements, attachments,
or additional clean claim elements, the HMO or preferred provider carrier
shall provide advance written notice to all affected physicians or providers
of such revisions
in accordance with §21.2818 of this title (relating
to Disclosure Formats)
. The notice shall identify with specificity the
revisions to data elements, attachments, or additional clean claim elements,
and must be received by the physician or provider at least 60 calendar days
before the HMO or preferred provider enforces such revisions to the requirements
of a clean claim. If the contract between the HMO or preferred provider carrier
and the physician or provider provides for mutual agreement of the parties
as the sole mechanism for requiring revised data elements, attachments or
additional clean claim elements that have previously been properly included
as elements of a clean claim pursuant to §§21.2803(b), (c), (d),
and (e), 21.2804, and 21.2805 of this title, then the written notice specified
in this section does not supersede the requirement for mutual agreement.
§21.2807.Effect of Filing a Clean Claim.
(a)
The statutory claims payment period begins to run upon
receipt of a clean claim from a physician or provider at the address designated
by the HMO or preferred provider carrier, in accordance with §21.2811
of this title (relating to Disclosure of Processing Procedures), whether it
be the address of the HMO, preferred provider carrier, [
(b)-(c)
(No change.)
§21.2809.Audit Procedures.
(a)
If an HMO or preferred provider carrier is unable to pay
or deny a clean claim, in whole or in part, within the statutory claims payment
period specified in §21.2802(25)(B) of this title (relating to Definitions),
the unpaid portion of the claim shall be classified as an audit, and the HMO
or preferred provider carrier shall pay 85% of the contracted rate on the
unpaid portion of the clean claim within the statutory claims payment period.
[
(b)
The
[
(c)
Upon completion of the audit
as required by subsection
(b) of this section
, if [
(d)
Payments made pursuant to this section
on a clean claim are not an admission that the HMO or preferred provider carrier
acknowledges liability on that claim.
(e)
Following completion of the audit process,
an HMO or preferred provider carrier is not precluded from continuing to investigate
its liability on a previously audited claim and seeking a refund of claim
payment.
§21.2811.Disclosure of Processing Procedures.
(a)
In contracts with physicians or providers, or in the physician
or provider manual or other document that sets forth the procedure for filing
claims, or by any other method mutually agreed upon by the contracting parties,
an HMO or preferred provider carrier must disclose to its physicians and providers
in accordance with §21.2818 of this title (relating to Disclosure Formats)
:
(1)
the address, including a physical address, where claims
are to be sent for processing;
(2)
the telephone number at which physicians' and providers'
questions and concerns regarding claims may be directed;
(3)
any entity along with its address, including physical address
and telephone number, to which the HMO or preferred provider carrier has delegated
claim payment functions, if applicable; and
(4)
the address and physical address and telephone number of
any separate claims processing centers for specific types of services, if
applicable.
(b)
An HMO or preferred provider carrier shall provide no less
than 60 calendar days prior written notice of any changes of address for submission
of claims, and of any changes of delegation of claims payment functions, to
all affected physicians and providers with whom the HMO or preferred provider
carrier has contracts.
§21.2815.Failure to Meet the Statutory Claims Payment Period.
An HMO or preferred provider carrier that fails to comply with the
requirements of §21.2807(b) of this title (relating to Effect of Filing
a Clean Claim) and §21.2809(a) and (c) of this title (relating to Audit
Procedures) shall pay the
greater of the
full amount of the billed
charges submitted on the clean claim or
any
[
§21.2816.Date of Claim Receipt.
(a)
For purposes of establishing a rebuttable presumption to
demonstrate the date of mailing or delivery of a claim, the physician or provider
shall, as appropriate:
(1)
submit the claim by United States mail, first class, by
United States mail return receipt requested or by overnight delivery service,
and maintain a log that complies with subsection (f) of this section that
identifies each claim included in the submission, include a copy of the log
with the relevant submitted claim, fax a copy of the log to the HMO, preferred
provider carrier or delegated claims processor on the date of the submission
and maintain a copy of the fax transmission acknowledgment;
(2)
submit the claim electronically and maintain proof of the
electronically submitted claim;
(3)
fax the claim and maintain proof of facsimile transmission;
or
(4)
hand deliver the claim, maintain a log that complies with
subsection (f) of this section that identifies each claim included in the
delivery, include a copy of the log with the relevant hand delivery and maintain
a copy of the signed receipt acknowledging the hand delivery.
(b)
If a claim for medical care or health care services provided
to a patient is submitted by United States mail, first class, the claim is
presumed to have been received on the third day after the date the claim is
submitted and the faxed log is transmitted, or if the claim is submitted using
overnight delivery service or United States mail return receipt requested,
on the date the delivery receipt is signed.
(c)
If the claim is submitted electronically, the claim is
presumed received on the date of the electronic verification of receipt by
the HMO or preferred provider carrier or the HMO's or preferred provider carrier's
clearinghouse. If the HMO's or the preferred provider carrier's clearinghouse
does not provide a confirmation of receipt of the claim within 24 hours of
submission by the physician or provider or the physician's or provider's clearinghouse,
the physician's or provider's clearinghouse shall provide the confirmation.
The physician's or provider's clearinghouse must be able to verify that the
claim contained the correct payor identification of the entity to receive
the claim.
(d)
If a claim is faxed, the claim is presumed received on
the date of the transmission acknowledgment.
(e)
If a claim is hand delivered, the claim is presumed received
on the date the delivery receipt is signed.
(f)
The claims mail log maintained by physicians and providers
should include the following information: name of claimant; address of claimant;
telephone number of claimant; name of addressee; name of carrier; date of
mailing or hand delivery; subscriber name; subscriber ID number; patient name;
date(s) of service/occurrence, total charge, and delivery method.
(g)
An example of a claims mail log that may be maintained
by physicians and providers is as follows:
Figure: 28 TAC §21.2816(g)
§21.2817.Terms of Contracts.
Contracts between HMOs or preferred provider carriers and physicians
and providers shall not include terms which:
(1)
extend the statutory or regulatory time frames; or
(2)
waive the physician's or provider's right to recover reasonable
attorney fees pursuant to Articles 20A.18B(g) and 3.70-3C §3A(g).
§21.2818.Disclosure Formats.
Any document containing a disclosure required under §§21.2804,
21.2805, 21.2806 or 28.2811 of this title (relating to Disclosure of Necessary
Attachments, Disclosure of Additional Clean Claim Elements, Disclosure of
Revision of Data Elements, Attachments or Additional Clean Claim Elements,
and Disclosure of Processing Procedures) shall include a heading on the first
page of the document in a prominent location and in a type that is boldfaced,
capitalized, underlined or otherwise set out from the surrounding written
material so as to be conspicuous that identifies the document as one containing
a required disclosure.
§21.2819.Applicability.
The amendments to §§21.2803 - 21.2807, 21.2809, 21.2811,
21.2815 of this title (relating to Elements of a Clean Claim, Disclosure of
Necessary Attachments, Disclosure of Additional Clean Claim Elements, Disclosure
of Revision of Data Elements, Attachments or Additional Clean Claim Elements,
Effect of Filing a Clean Claim, Audit Procedures, Disclosure of Processing
Procedures, and Failure to Meet the Statutory Claims Payment Period), and
new §§21.2816 - 21.2818 of this title (relating to Date of Claim
Receipt, Terms of Contracts, and Disclosure Formats) apply to claims filed
for non-confinement services, treatments or supplies rendered on or after
September 5, 2001, and to claims filed for services, treatments, or supplies
for in-patient confinements in a hospital or other institution that began
on or after September 5, 2001.
§21.2820.Severability.
If a court of competent jurisdiction holds that any provision of this
subchapter is inconsistent with any statutes of this state, is unconstitutional,
or is invalid for any reason, the remaining provisions of this subchapter
shall remain in full effect.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on July 20, 2001.
TRD-200104209
Lynda Nesenholtz
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: September 2, 2001
For further information, please call: (512) 463-6327
28 TAC §21.2816
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Insurance or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Insurance proposes repeal
of §21.2816 concerning submission of clean claims. Repeal of this section
is necessary so that proposed new §21.2816 may be adopted to implement
legislation enacted by the 75th Legislature in House Bill 610, as contained
in Texas Insurance Code Articles 3.70-3C §3A and 20A.18B. This section
will be renumbered and proposed as §21.2820. Simultaneous to this proposed
repeal, proposed new §§21.2816 - 21.2820 and amendments to §§21.2803
- 21.2807, 21.2809, 21.2811, and 21.2815 are published elsewhere in this issue
of the Texas Register.
Kimberly Stokes, Senior Associate Commissioner, Life/Health/Licensing,
has determined that during the first five years that the proposed repeal is
in effect, there will be no fiscal impact on state or local government as
a result of enforcing or administering the sections. There will be no measurable
effect on local employment or the local economy as a result of the proposal.
Ms. Stokes has also determined that for each year of the first five years
the repeal of the section is in effect, the public benefit anticipated as
a result of administration and enforcement of the repealed sections will be
that clean claims are paid in a timely manner. There is no anticipated economic
cost to persons who are required to comply with the proposed repeal. There
is no anticipated difference in cost of compliance between small and large
businesses.
To be considered, written comments on the proposal must be submitted no
later than 5:00 p.m. on September 4, 2001 to Lynda H. Nesenholtz, General
Counsel and Chief Clerk, Mail Code 113-1C, Texas Department of Insurance,
P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comment
must be simultaneously submitted to Pat Brewer, HMO Project Director, Mail
Code 103-6A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas
78714-9104. A request for a public hearing must be submitted separately to
the Office of Chief Clerk.
The repeal of §21.2816 is proposed pursuant to the Insurance
Code Articles 20A.18B, 3.70-3C §3A and §36.001. Articles 20A.18B(a)
and 3.70-3C §3A(a) provide that a clean claim is determined under the
Department's rules. Articles 20A.18B(o) and 3.70-3C §3A(n) provide that
the commissioner may adopt rules as necessary to implement the Prompt Payment
of Physician and Providers section. Section 36.001 provides that the Commissioner
of Insurance may adopt rules to execute the duties and functions of the Texas
Department of Insurance only as authorized by statute.
The proposed repeal affects regulation pursuant to the following statutes:
Insurance Code Articles 20A.18B and 3.70-3C
§21.2816.Severability.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on July 20, 2001.
TRD-200104210
Lynda Nesenholtz
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: September 2, 2001
For further information, please call: (512) 463-6327
Chapter 131.
BENEFITS--LIFETIME INCOME BENEFITS
28 TAC §131.1
The Texas Workers' Compensation Commission (the commission)
proposes amendments to §131.1, concerning the Initiation of Lifetime
Income Benefits. The amendment of §131.1 is proposed in response to the
amendments to Texas Labor Code, §408.161(a), as passed by the 77th Legislature,
2001 (House Bill 2600, Article 9) and specifies when lifetime income benefits
related to burns should be initiated.
House Bill 2600 amended Texas Labor Code, §408.161(a) to include payment
of lifetime income benefits for compensable injuries resulting in third degree
burns that cover at least 40% of the body and require grafting, and for third
degree burns covering the majority of either both hands or one hand and the
face. This statutory provision is applicable to dates of injury on or after
June 17, 2001. A previous statutory amendment (in 1997) is applicable to certain
losses for dates of injury on or after September 1, 1997. Because eligibility
for lifetime income benefits is determined in accordance with the statute
and rules in effect on the date of injury, §131.1 has been amended to
clarify the dates of injury to which each type of loss applies.
Because the permanent nature of such an injury is readily discernable shortly
after the injury, the commission is amending the rule to require carriers
to initiate lifetime income benefits after the eighth day of disability as
a result of the burn injury, or as soon as the qualification for lifetime
income benefits is satisfied.
Proposed amendments to §131.1 also replace references to statutory
subsections with references to subsections of the rule. Existing citations
in the rule to the Workers' Compensation Act have been updated to reflect
codification of the Texas Labor Code.
The
Texas Register
published text shows
words proposed to be added to or deleted from the current text, and should
be read to determine all proposed changes.
Brent Hatch, Director of Customer Services, has determined that for the
first five-year period the proposed rule is in effect there will be no fiscal
implications for state or local governments as a result of enforcing or administering
the rule.
Local government and state government as a covered regulated entity will
be impacted in the same manner as described later in this preamble for persons
required to comply with the rule as proposed.
Mr. Hatch has also determined that for each year of the first five years
the rule as proposed is in effect the public benefits anticipated as a result
of enforcing the rule will be as follows.
Amendments to §131.1 allow injured employees suffering third degree
burns covering at least 40% of their body and requiring grafting, or third
degree burns covering the majority of either both hands or one hand and the
face to receive lifetime income benefits immediately upon meeting the eligibility
criteria. The inclusion of these is mandated by statute.
Insurance carriers who are liable for these burn injuries may experience
an increase in benefit expenditures due to a small increase in the number
of injured employees qualifying for benefits beyond 401 weeks. The number
of injured employees satisfying the statutory eligibility requirements for
lifetime income benefits for burns is projected to be small. In addition,
insurance carriers who are liable for these burn injuries may decrease costs
by reaching an agreement with the injured employee for monthly payment of
lifetime income benefits or purchasing an annuity for lifetime income benefits
in accordance with §131.4, or this title (relating to Change in Payment
Period; Purchase of Annuity for Lifetime Income Benefits), in contrast to
regular issuance of income benefit checks. The impact of the statute and rule
will therefore be minimal for carriers.
There will be no adverse economic impact on small businesses or on micro-businesses
as a result of the proposed rule amendments. There will be only a proportionate
difference in the cost of compliance for small businesses and micro-businesses
as compared to the largest businesses, including state and local government
entities.
Comments on the proposal must be received by 5:00 p.m., September 20, 2001.
You may comment via the Internet by accessing the commission's website at
Commenters are requested to clearly identify by number the specific rule
and paragraph commented upon. The commission may not be able to respond to
comments that cannot be linked to a particular proposed rule. Along with your
comment, it is suggested that you include the reasoning for the comment in
order for commission staff to fully evaluate your recommendations.
Based upon various considerations, including comments received and the
staff's or commissioners' review of those comments, or based upon the commissioners'
action at the public meeting, the rule as adopted may be revised from the
rule as proposed in whole or in part. Persons in support of the rule as proposed,
in whole or in part, may wish to comment to that effect.
A public hearing on this proposal will be held on September 20, 2001, at
the Austin home office of the commission (Southfield Building, 4000 South
IH-35, Austin, Texas). Those persons interested in attending the public hearing
should contact the Commission's Office of Executive Communication at (512)
440-5690 to confirm the date, time, and location of the public hearing for
this proposal. The public hearing schedule will also be available on the commission's
website at
www.twcc.state.tx.us
.
The amendment to §131.1 is proposed under: the Texas Labor
Code, §402.061, which authorizes the commission to adopt rules necessary
to administer the Act; the Texas Labor Code, §406.010, which authorizes
the commission to adopt rules on claims service activities of insurance carriers;
the Texas Labor Code, §408.081, which authorizes establishment of rules
to pay monthly income benefits; the Texas Labor Code §408.082, which
sets out when the right to income benefits accrues; and the Texas Labor Code, §408.161,
as amended by the 77th Legislature, which describes eligibility for Lifetime
Income Benefits.
This proposed amendment to §131.1 does not affect any other code,
statute, or article.
§131.1.Initiation of Lifetime Income Benefits.
(a)
Eligibility for lifetime income benefits
is determined in accordance with the statute and rules in effect on the date
of injury:
(1)
for total and permanent loss of sight in both eyes, applicable
to a compensable injury that occurs on or after January 1, 1991;
(2)
for loss of both feet at or above the ankle, applicable
to a compensable injury that occurs on or after January 1, 1991;
(3)
for loss of both hands at or above the wrist, applicable
to a compensable injury that occurs on or after January 1, 1991;
(4)
for loss of one foot at or above the ankle and the loss
of one hand at or above the wrist, applicable to a compensable injury that
occurs on or after January 1, 1991;
(5)
for an injury to the spine that results in permanent and
complete paralysis of both arms, both legs, or one arm and one leg, applicable
to a compensable injury that occurs on or after January 1, 1991
(6)
for:
(A)
an injury to the skull resulting in incurable insanity
or imbecility, applicable to a compensable injury that occurs on or after
January 1, 1991 and before September 1, 1997
(B)
a physically traumatic injury to the brain resulting in
incurable insanity or imbecility, applicable to a compensable injury that
occurs on or after September 1, 1997
(7)
for third degree burns that cover at least 40 percent of
the body and require grafting, or for third degree burns covering the majority
of either both hands or one hand and the face, applicable to a compensable
injury that occurs on or after June 17, 2001.
(b)
[
(1)
for losses described in
subsection
[
(2)
for changing from temporary income benefits to lifetime
income benefits, when maximum medical improvement is certified for losses
described in
subsection
[
(c)
[
(d)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on July 20, 2001.
TRD-200104205
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Earliest possible date of adoption: September 2, 2001
For further information, please call: (512) 804-4287
Subchapter C. SECOND OPINIONS FOR SPINAL SURGERY
28 TAC §133.206
The Texas Workers' Compensation Commission (the commission)
proposes amendments to §133.206 concerning the Spinal Surgery Second
Opinion Process.
Section 408.026 of the Texas Workers' Compensation Act (the Act) requires
a Spinal Surgery Second Opinion process for all nonemergency spinal surgery.
House Bill 2600 (HB-2600), passed by the 77th Legislature, 2001, amended §408.026,
by deleting the second opinion process directive and requiring the addition
of spinal surgery to the list of health care treatments and services that
require express preauthorization and concurrent review.
Additionally, §413.014 of the Act, relating to Preauthorization, requires
the commission to specify by rule which health care treatments and services
require express preauthorization by the insurance carrier (carrier). The enactment
of HB-2600 establishes carrier liability for the costs related to nonemergency
spinal surgery under the provision of §413.014 and directs that all non-emergency
spinal surgery procedures require preauthorization approval prior to surgery,
and concurrent review approval for the continuation of treatment beyond previously
approved treatment.
The
Texas Register
published text shows
the proposed amended language and should be read to determine all proposed
amendments.
To comply with the provisions of HB-2600 the commission has, by separate
rulemaking, proposed amendments to §134.600 of this title relating to
Preauthorization, Concurrent Review, and Precertification of Health Care.
To clarify that recommendations for spinal surgery submitted prior to the
effective date of the proposed amendments to §134.600 are to be processed
pursuant to the rule and statute in effect at the time of the submission,
proposed subsection (m) amends the current language of §133.206 to specify
its applicability.
Tom Hardy, Director of the Medical Review Division (Division), has determined
the following with respect to fiscal impact for the first five-year period
the proposed amendment is in effect.
With regard to enforcement and administration of the rule by state or local
governments, the commission anticipates minimal fiscal implications. The spinal
surgery preauthorization and concurrent review requirements are anticipated
to more closely monitor the delivery of medical care to injured employees,
and on a more timely basis.
Savings resulting from the gradual deletion of the internal management
of the spinal surgery second opinion process by the Division may be offset
by the increased level of internal management of medical disputes within the
Division. The volume of appeals to the commission for Medical Dispute Resolution
may increase for the resolution of preauthorization and concurrent review
disputes regarding the need for spinal surgery, resulting from denials by
the insurance carrier (carrier) or their delegated agents. If the number of
medical disputes increases, there will be additional cost to the commission
to resolve these disputes. These costs are the result of statutory mandate.
Local government and state government, as covered regulated entities, will
be impacted in the same manner as persons required to comply with the amendment
as proposed.
Tom Hardy has determined that for each year of the first five years the
rule, as proposed, is in effect, the public benefits anticipated as a result
of enforcing the rule will be an improved system for the prospective and concurrent
review of spinal surgery that will provide positive benefits to all participants
in the system. The participants in the system are: injured employees, employers,
insurance carriers and health care providers.
The intent of the amendment to §133.206 is to comply with the statutory
mandate in the Texas Labor Code as amended by HB-2600, adopted during the
2001 Texas Legislative Session. The enactment of HB-2600 establishes carrier
liability for the costs related to non-emergency spinal surgery under the
provision of §413.014 and directs that all non-emergency spinal surgery
procedures require preauthorization approval and concurrent review approval
for the respective provision of or continuation of treatment beyond previously
approved health care. All of the benefits and costs are attributable to the
statutory revision.
The amended language should benefit all participants in the system by clarifying
the applicable process for the approval of spinal surgery. The statutory and
rule language establishes that on or after the effective date of this proposed
rule amendment, (March 1, 2002) recommendations for spinal surgery will no
longer be subject to the spinal surgery second opinion process. Requests for
preauthorization of spinal surgery will be submitted to the insurance carrier
or the carrier's delegated agent by telephone or facsimile. All TWCC-63 forms
submitted prior to March 1, 2002 will be processed in accordance with the
statute and rules in effect at the time the form was filed with the commission.
The insurance carrier or its delegated agent are provided the opportunity
to prospectively review and determine the medical appropriateness of the spinal
surgery. It is beneficial to the carrier and the requestor and the employee
that the requestor is afforded the opportunity to discuss the medical necessity
of the proposed surgery prior to a denial of the procedure, as this should
reduce disputes and facilitate delivery of care as and when needed. The employee
should also benefit from discussion of medical needs by medical professionals.
The preauthorization process should take place in less time than is allowed
under the spinal surgery second opinion process. This benefit to the injured
employee is anticipated to result in the injured employee receiving necessary
surgery in a more timely fashion than the current second opinion process.
In addition, whereas the second opinion process currently allows two (2) second
opinion physical examinations of the injured employee, the preauthorization
process would be primarily a paper review. Only in the event of a dispute
could the injured employee be subjected to a second physical examination per
statutory mandate. No economic costs are anticipated for injured employees
to comply with the requirements of the proposed amendment.
Benefit to insurance carrier is anticipated to result in an overall reduction
in costs. The inclusion of spinal surgery under preauthorization is anticipated
to increase costs due to the greater volume of preauthorization requests received;
however, the increased cost should be greatly offset by the reduced number
of second opinion examinations that occur at the expense of the carrier currently
allowed under §133.206.
Health care providers should experience no financial impact as a result
of the proposed amended rule. Whereas doctors currently submit recommendations
for spinal surgery on a commission-adopted form, under the proposed amendment,
the doctors will simultaneously request spinal surgery and the hospital admission
for the surgery by telephone or transmission of a facsimile. The reduction
in paperwork should result in a more efficient delivery of appropriate treatment.
Any costs to the doctor are expected to be offset by more efficiently reviewing
and discussing the efficacy of treatment prior to the delivery of the services,
resulting in a reduction in disputes.
The cost savings to the employer affected by the proposed amendment is
anticipated to reduce the medical costs per claim to the carrier, possibly
resulting in a premium reduction to the employer and an overall savings to
the system. In addition, the more efficient and timely delivery of necessary
surgery resulting from the preauthorization process instead of the spinal
surgery second opinion process, may result in a shortened period off the job
and more readily return the employee to full work status.
There will be no adverse economic impact on small businesses or micro-businesses
as a result of the proposed amendment to this section because the preauthorization
requirement replaces an existing second opinion process. There will be no
difference in the cost of compliance for small businesses or micro-businesses
as compared to large businesses.
Comments on the proposal must be received by 5:00 p.m., September 20, 2001.
You may comment via the Internet by accessing the commission's website at
A public hearing on this proposal will be held on September 20, 2001, at
the Austin central office of the commission (Southfield Building, 4000 South
IH-35, Austin, Texas). Those persons interested in attending the public hearing
should contact the commission's Office of Executive Communications at (512)
804-4430 to confirm the date, time, and location of the public hearing for
this proposal. The public hearing schedule will also be available on the commission's
website at
www.twcc.state.tx.us.
The amendment is adopted under the Texas Labor Code, §402.061,
which authorizes the Commission to adopt rules necessary to administer the
Act; the Texas Labor Code, §402.072, which mandates that only the Commission
can impose sanctions which deprive a person of the right to practice before
the Commission, receive remuneration in the workers' compensation system,
or revoke a license, certification or permit required for practice in the
system; the Texas Labor Code, §408.022, which requires an employee receiving
treatment under the workers' compensation system to choose a doctor from a
list of doctors approved by the Commission and establishes the extent of an
employee's option to select an alternate doctor; the Texas Labor Code §408.026,
(as amended by HB-2600, 2001 Texas Legislature) that requires the preauthorization
of spinal; the Texas Labor Code Chapter 410, which provides procedures for
the adjudication of disputes; the Texas Labor Code §413.014 (as amended
by HB-2600, 2001 Texas Legislature) that requires the commission to specify
by rule, except for treatments and services required to treat a medical emergency,
which health care treatments and services require express preauthorization
and concurrent review by the carrier as well as allowing health care providers
to request precertification and allowing the carriers to enter agreements
to pay for treatments and services that do not require preauthorization or
concurrent review. This mandate also states the carrier is not liable for
the cost of the specified treatments and services unless preauthorization
is sought by the claimant or health care provider and either obtained or ordered
by the commission; the Texas Labor Code §413.031, which provides a process
for dispute resolution for disputes involving medical services; the Texas
Labor Code, §415.034, which allows a party charged with an administrative
violation or the Executive Director of the Commission to request a hearing
with the State Office of Administrative Hearings; and the Texas Government
Code, §2003.021(c), which requires the State Office of Administrative
Hearings to conduct hearings under the Texas Labor Code, Title 5, in accordance
with the applicable substantive rules and policies of the Texas Workers' Compensation
Commission.
The proposed amended rule affects the following statutes: the Texas Labor
Code, §402.061, which authorizes the Commission to adopt rules necessary
to administer the Act; the Texas Labor Code, §402.072, which mandates
that only the Commission can impose sanctions which deprive a person of the
right to practice before the Commission, receive remuneration in the workers'
compensation system, or revoke a license, certification or permit required
for practice in the system; the Texas Labor Code, §408.022, which requires
an employee receiving treatment under the workers' compensation system to
choose a doctor from a list of doctors approved by the Commission and establishes
the extent of an employee's option to select an alternate doctor; the Texas
Labor Code §408.026, (as amended by HB-2600, 2001 Texas Legislature)
that requires the preauthorization of spinal; the Texas Labor Code Chapter
410, which provides procedures for the adjudication of disputes; the Texas
Labor Code §413.014 (as amended by HB-2600, 2001 Texas Legislature) that
requires the commission to specify by rule, except for treatments and services
required to treat a medical emergency, which health care treatments and services
require express preauthorization and concurrent review by the carrier as well
as allowing health care providers to request precertification and allowing
the carriers to enter agreements to pay for treatments and services that do
not require preauthorization or concurrent review. This mandate also states
the carrier is not liable for the cost of the specified treatments and services
unless preauthorization is sought by the claimant or health care provider
and either obtained or ordered by the commission; the Texas Labor Code §413.031,
which provides a process for dispute resolution for disputes involving medical
services; the Texas Labor Code, §415.034, which allows a party charged
with an administrative violation or the Executive Director of the Commission
to request a hearing with the State Office of Administrative Hearings; and
the Texas Government Code, §2003.021(c), which requires the State Office
of Administrative Hearings to conduct hearings under the Texas Labor Code,
Title 5, in accordance with the applicable substantive rules and policies
of the Texas Workers' Compensation Commission.
§133.206.Spinal Surgery Second Opinion Process
(a)-(l)
(No change.)
(m)
This section shall be effective for all Form TWCC-
63's
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on July 20, 2001.
TRD-200104206
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Earliest possible date of adoption: September 2, 2001
For further information, please call: (512) 804-4287
Subchapter G. PROSPECTIVE AND CONCURRENT REVIEW OF HEALTH CARE
28 TAC §134.600
The Texas Workers' Compensation Commission (the commission)
proposes amendments to §134.600, concerning the procedures for requesting
preauthorization of specific treatments and services.
The
Texas Register
published text shows
the proposed amended language and should be read to determine all proposed
amendments.
Section 413.014 of the Texas Workers' Compensation Act (the Act) requires
the commission to specify by rule which health care treatments and services
require express preauthorization. House Bill 2600 (HB-2600), passed by the
77th Texas Legislature in its 2001 session, amended Texas Labor Code §413.014
by adding the concept of concurrent review to preauthorization and identifying
categories of services for which the commission must require express preauthorization
and concurrent review by the insurance carrier (carrier). These services are:
spinal surgery; work-hardening or work-conditioning services provided by a
health care facility that is not credentialed by an organization recognized
by commission rules; inpatient hospitalization; outpatient or ambulatory surgical
services; and any investigational or experimental services or devices. The
statute defines "investigational or experimental service or device" and provides
that an insurance carrier is not liable for payment for treatments and services
that require preauthorization unless preauthorization is sought and obtained
from the insurance carrier or ordered by the commission.
House Bill 2600 (HB-2600) also amends §408.026 of the Act, regarding
spinal surgery second opinions to clarify that spinal surgery is now subject
to preauthorization.
Amended §413.014 of the Act also provides that a carrier and a health
care provider may not be prohibited from voluntarily discussing health care
treatment and treatment plans, either prospectively or concurrently, nor may
the carrier be prohibited from certifying or agreeing to pay for health care
consistent with those agreements.
House Bill 3697 (HB-3697) passed by the 76th Legislative Session, 1999,
required that the Texas Workers' Compensation Insurance Fund enter into a
joint venture with the Research and Oversight Council (ROC) on workers' compensation
for interim studies. These studies were to include examination of the quality
and cost-effectiveness of the current workers' compensation health care delivery
system as compared to other health care delivery systems in Texas and workers'
compensation health care delivery systems in other states.
Research studies commissioned by the ROC pursuant to HB-3697 confirm perceptions
that Texas workers' compensation medical costs are higher than those in other
states and other health care delivery systems. The ROC has concluded that,
"These cost differences result primarily from more medical testing and treatment
provided to Texas injured workers for longer periods of time than for workers
with similar injuries in other state workers' compensation systems and in
group health plans."
The Workers' Compensation Research Institute (WCRI), in its December 2000
publication,
The Anatomy of Workers' Compensation
Medical Costs and Utilization: A Reference Book
finds, "Across all
claim types, the average medical cost per claim in Texas is significantly
higher than that of the median state, a function of higher utilization overall.
Higher utilization is most pronounced for chiropractors: The average number
of visits per claim is almost double that of the median state. The payment
per chiropractic service is also the highest among the eight states. And the
utilization rate and per-service payment for physical/occupational therapists
also are among the highest." In addition to incorporating the revisions made
to the Act by HB-2600, the Commission proposes the amendments to §134.600
to focus on those highly utilized treatments and services.
The proposal amends the title of Subchapter G from, "Treatments and Services
Requiring Pre-Authorization," to "Prospective and Concurrent Review of Health
Care," and further amends the title of §134.600 from "Procedure for Requesting
Pre-Authorization of Specific Treatments and Services," to, "Preauthorization,
Concurrent Review, and Precertification of Health Care." These proposed title
changes more accurately describe the purpose of the amendments and incorporate
the new concepts of concurrent review and precertification.
As in current §134.600, preauthorization is not required for treatments
and services related to an emergency. Proposed subsection (a)(1) uses the
definition of emergency as defined in commission-adopted §133.1 of this
title, (relating to Definitions for Chapter 133). This language better defines
what constitutes an emergency and provides consistency among commission rules.
Proposed subsection (a)(2) clarifies when an approval results in carrier
liability for treatments and services listed in subsection (h). Proposed amended
language in subsection (a)(2) clarifies the requestor to be the treating doctor,
the prescribing or referral doctor, or the injured employee. A doctor's office
staff may make the request for approval at the direction of the doctor.
The treating doctor is primarily responsible for coordinating the injured
employee's health care for an injury. The treating doctor may provide treatment,
may prescribe treatment to be rendered by another health care provider (e.g.
physical therapist), or may refer the injured employee to another doctor for
treatment (e.g. surgeon). If the treating doctor or a referral doctor prescribes
treatment by another health care provider, the prescribing doctor is responsible
for making the request for approval. This holds a doctor responsible for requesting
preauthorization or concurrent review for the treatment the doctor proposes
to provide or prescribe. In addition, limiting the requestor to a treating,
prescribing or referral doctor, or an injured employee reduces the number
of persons who must have access to confidential medical records.
Subsection (a)(2) establishes carrier liability when the requestor has
received approval from the carrier through one of three processes: preauthorization
(prospective approval of treatments and services listed in subsection (h));
concurrent review (approval of an extension of on-going treatments or services
beyond what was previously approved); and precertification or agreement (voluntary
approval of treatments and services not included in subsection (h)). To establish
carrier liability, each of these approvals must occur prior to the provision
of or continuation of the requested health care.
No changes are proposed to subsection (a)(3), which establishes carrier
liability when payment is ordered by the commission.
The proposal deletes current subsection (b) and replaces it with new subsection
(b) for compliance with the statutory changes to §408.026 and §413.014
enacted by HB-2600. Language in current subsection (b), regarding the Second
Opinions for Spinal Surgery, is deleted per statute, placing non-emergency
spinal surgery under preauthorization and concurrent review processes.
Proposed subsection (b) clarifies that even if preauthorization is approved,
the approval does not guarantee payment if there has been a final adjudication
that the injury is not compensable or that the health care was provided for
a condition unrelated to the compensable injury. Subsection (b) further defines
final adjudication as the issuance of a final commission decision or order
that is no longer subject to appeal by either party.
Proposed subsection (c) incorporates simplified language and clerical modifications
without substantive change to current language. The description of a request
has been amended to include a request for concurrent review (approval) for
the continuation of on-going health care that was previously approved under
preauthorization or concurrent review.
The proposal deletes current subsection (d) and adds new subsection (d)
which outlines the procedure for requesting preauthorization or concurrent
review. Preauthorization must be requested and approved prior to providing
the treatment or service. The request may be transmitted to the insurance
carrier by telephone or facsimile. Subsection (d) describes what information
must be included in the request, including medical information to substantiate
the need for the treatment or service recommended.
The proposal deletes current subsection (e) and adds new subsection (e)
to better clarify the procedure for insurance carrier response to a request
for preauthorization or concurrent review. This procedure provides consistency
with other commission rules and Texas Department of Insurance (TDI) rules
for Utilization Reviews for Health Care Provided Under Workers' Compensation
Insurance Coverage (UR). Time frames from the current rule were not altered;
however, the reference to twenty-four hours is replaced with the proposed
term "one working day," and a time frame of one working day for concurrent
review is added. In accordance with HB-2600, notification requirements are
expanded to require the carrier to notify an injured employee of the right
to timely request review of a medical service for which preauthorization is
sought by the doctor and denied by the carrier.
Proposed subsection (e) sets out what information must be included in an
approval and in a denial, and requires that decisions be based solely upon
the reasonableness and medical necessity of the requested health care. The
medical necessity for the requested treatment must be addressed even if a
dispute arises or is pending regarding compensability, liability for the claim,
extent of or relatedness to the injury, or the fact that the employee has
reached maximum medical improvement. Proposed subsection (e) also affords
the requestor a reasonable opportunity to discuss the plan of treatment and
the clinical basis for a denial with the appropriate doctor or health care
provider performing the review.
Proposed amended subsection (f) includes the requirement for the requestor
and the carrier to maintain accurate records. Records maintained must accurately
reflect information regarding requests for preauthorization or concurrent
review, approvals and/or denials, and appeals, if any. The maintenance of
accurate records should facilitate the dispute resolution process. Additional
language is proposed requiring the carrier and the requestor (other than the
injured employee) to submit summary information to the commission if requested
to do so. This detailed information concerning volume of requests, denials/approvals
and appeals will allow tracking of outcome data to monitor compliance with
the process and determine the efficiency and financial impact of the preauthorization,
concurrent review and precertification processes.
The proposal deletes current subsection (g) and adds new subsection (g),
which addresses the steps and required timeframes in the event of a denial
of preauthorization or concurrent review. The requestor must request reconsideration
of a denial by the carrier prior to seeking Medical Dispute Resolution. The
request for reconsideration must be submitted within five working days from
receipt of the written denial. Subsection (g) requires the carrier to respond
to reconsideration requests within 5 working days for preauthorization and
within 1 working day for concurrent review. Subsection (g) further addresses
the requestor's entitlement to timely request a review of the medical necessity
of the denied health care through Medical Dispute Resolution at the commission.
The current subsection (h) lists the categories of treatments and services
that require express preauthorization by the carrier. Proposed subsection
(h) amends the language to include concurrent review to extend treatment beyond
that which was previously approved. The current list language identifies sixteen
categories or treatments that require preauthorization or concurrent review.
The proposed amended language adds the categories mandated by HB-2600, and
adds and revises other categories as necessary to achieve the statutory purposes
of timely delivery of appropriate medical care and effective medical cost
containment. Proposed subsections have been renumbered as a result of statutory
inclusions and commission additions.
Inpatient hospitalization is one of the statutorily mandated categories.
Proposed subsection (h)(1) clarifies that preauthorization for inpatient hospital
admissions includes the preauthorization of the primary treatments and/or
services to be performed and the length of stay. If the length of stay needs
to be extended, a request for concurrent review is required.
In accordance with HB-2600, proposed subsection (h)(2) includes all outpatient
surgical services and ambulatory surgical services in the list of treatments
and services requiring preauthorization and concurrent review. This includes
all outpatient surgical procedures and other ambulatory surgical services,
wherever provided. The current rule requires preauthorization of ambulatory
surgical center care.
Proposed subsection (h)(3) adds spinal surgery to the list as required
by HB-2600 amendments to §408.026 of the Texas Labor Code, as well as §413.014.
The current rule requires preauthorization for all psychiatric or psychological
therapy or testing, except as a part of a work hardening program. Proposed
subsection (h)(4), amends language regarding testing to clarify that, except
as part of a preauthorized rehabilitation program, psychological testing and
psychotherapy require preauthorization, as well as all repeat evaluations
and repeat interviews. The intent is that if these services are part of a
preauthorized rehabilitation program, they will not require additional separate
preauthorization. If, however, these services are stand-alone procedures,
they do require separate preauthorization. Initial psychiatric or psychological
evaluations and interviews are essential assessment tools and will not require
preauthorization; however, repeat evaluations and interviews will require
preauthorization and concurrent review as a cost containment feature.
Proposed subsections (h)(5) - (10) are unchanged from the current rule
except for the addition of acupuncture treatment in proposed subsection (h)(6).
The inclusion of acupuncture is based on a review of literature regarding
the use of acupuncture. A review of studies regarding acupuncture treatment
was performed by the Cochrane Review Groups (an international not-for-profit
organization that reviews randomized controlled trials of health care). The
evidence summarized in Cochrane Review Abstracts did not indicate acupuncture
to be effective for the treatment of back pain. Because of the lack of consistent
evidence-based clinical research regarding the efficacy of acupuncture and
confirmation of its indications, this treatment has been added to the list
of treatments and services requiring preauthorization.
Proposed subsection (h)(11) includes biofeedback treatments except as part
of a preauthorized rehabilitation program.
The current rule requires preauthorization for physical therapy or occupational
therapy beyond eight weeks of treatment. The treatments and services in this
category represent a large portion of system costs and are performed at a
high frequency. Proposed subsection (h)(12) replaces the term, "physical therapy
or occupational therapy" with "physical medicine and rehabilitation modalities
and procedures," to reflect the terminology for this category of treatments
and/or services as established by the American Medical Association (AMA) in
the Current Procedural Terminology (CPT) Manual. CPT codes reflecting tests
and measurements within this category of physical medicine and rehabilitation
are exempt from the requirement of preauthorization. The references to physical
medicine and rehabilitation do not include vocational rehabilitation pursuant
to §401.011(19), the definition of "health care." Subsection (h)(12)
allows 18 sessions of physical medicine and rehabilitation services prior
to the requirement of preauthorization. In addition, 18 sessions of physical
medicine and rehabilitation services are allowed following surgery.
Current subsection (h)(11) and (h)(12) were deleted and have been incorporated
into proposed subsection (h)(13). Proposed subsection (h)(13)(A) and (B) incorporate
the statutory requirement for preauthorization and concurrent review for work
hardening and work conditioning, provided by a health care facility that is
not credentialed by an organization recognized by commission rules. Although
the 1996 Medical Fee Guideline recognizes the Commission on Accreditation
of Rehabilitation Facilities (CARF) for purposes of higher reimbursement as
opposed to non-CARF accredited facilities, no accreditation entities or organizations
are recognized by the commission for exclusion from prospective and concurrent
review of health care. CARF accreditation does not accomplish prospective
UR of health care. It is not the facility but the medical reasonableness and
medical necessity of the health care that is being preauthorized. The commission
is therefore proposing that preauthorization be required for all work hardening
and work conditioning. The inclusion of all rehabilitation programs under
preauthorization will operate as an initiative to cost containment. The programs
in paragraph (13)(C) outpatient medical rehabilitation and paragraph (13)(D)
chronic pain management/interdisciplinary pain rehabilitation also include
the more widely accepted terminology in rehabilitation settings and require
preauthorization for the initiation of treatment and concurrent review for
the continuation of treatment beyond any previously approved health care
Proposed subsection (h)(14) includes both the purchase and expected cumulative
rental of durable medical equipment (DME) greater than $500 per item, consistent
with the commission's currently proposed medical fee guidelines (§§134.202
- 134.208).
Proposed subsections (h)(15) - (17) are unchanged from the current language
except for the deletion of the term "pain clinics" in (h)(16). Pain clinics
are incorporated in subsection (h)(13)(D) as rehabilitation programs.
Proposed subsection (h)(18) adds manipulative treatments or manipulations
after 18 visits that include either manipulative treatment or manipulations.
This has been added to the preauthorization list as a cost containment feature.
The treatments and services in this category also represent a large portion
of system costs and are performed at a high frequency.
As required by HB-2600, proposed subsection (h)(19) adds to the preauthorization
list services and devices that are considered investigational or experimental
including those for which the American Medical Association (AMA) has no specifically
defined investigational or Current Procedural Terminology (CPT) code.
HB-2600 amended §413.014 of the Labor Code to provide that the commission
may not prohibit a carrier and a health care provider from voluntarily discussing
health care treatment and treatment plans either prospectively or concurrently
and may not prohibit a carrier from certifying or agreeing to pay for health
care consistent with those agreements. In accordance with this directive,
proposed subsection (i) allows a doctor to voluntarily request precertification
or concurrent certification of health care and treatment plans from the carrier,
either prospectively or concurrently. Further, subsection (i)(2) allows the
carrier to prospectively certify (precertify) or agree to pay for health care
consistent with those agreements. This subsection allows requests and payment
agreements for treatments and services that do not require preauthorization
or concurrent review under subsection (h) of this section. Subsection (i)(3)
establishes that voluntary requests and responses under this mandate are subject
to the provisions of subsections (a) and (b) relating to carrier liability.
A carrier is liable for treatment that is voluntarily precertified or concurrently
certified under subsection (i) in the same manner that the carrier is liable
for health care that is preauthorized or concurrently reviewed. Proposed subsection
(i)(4) provides that denials of precertification requests may not be disputed
through the preauthorization dispute resolution, although the treatment may
be retrospectively reviewed for medical necessity.
Proposed subsection (j) provides that additional preauthorization or reduced
preauthorization requirements may be applied to individual doctors or individual
workers' compensation medical claims, in accordance with the Act and other
commission rules adopted pursuant to statutory changes made by HB-2600.
Proposed subsections (k), (l), and (m) address the applicability of the
proposed rule. These subsections establish when the proposed amended rule
applies to requests for preauthorization, concurrent review and precertification
of health care, as well as recommendations for spinal surgery. Subsection
(k) provides that requests for preauthorization and/or concurrent review shall
be responded to in accordance with the rules in effect at the time of the
submission of the request. This provides clear guidance regarding what rules
will be applicable to a particular request. Subsection (k) also provides for
severability of portions of the rule or continuation of the rule as it existed
prior to amendment in the event that a court finds a portion of the rule invalid.
To smoothly transition from the current spinal surgery second opinion process
to the preauthorization process for approval of spinal surgery, subsection
(l) clarifies that current §133.206, Spinal Surgery Second Opinion Process,
will remain in effect only for recommendations for or resubmissions of recommendations
for spinal surgery submitted prior to the effective date of this section.
Section 133.206 is also proposed to be amended to make this limited applicability
clear. At some point in the future, §133.206 will be repealed. Proposed
subsection (m) establishes the effective date of this section as May 1, 2002.
Tom Hardy, Director of the Medical Review Division, has determined the
following with respect to fiscal impact for the first five-year period the
proposed amended rule is in effect.
With regard to enforcement and administration of the rule by state or local
governments, the commission anticipates experiencing minimal fiscal implications.
Clarification and modifications provided by the proposed amended language
should facilitate the implementation of HB-2600 and reduce errors in interpretation
of the rule. The proposed amendment adds additional categories of treatments
and services to the list of treatments and services requiring preauthorization,
and further includes the addition of the concurrent review mandate for the
services. Some of these additions are required by HB-2600. The increased preauthorization
and concurrent review requirements are anticipated to more closely monitor
the delivery of medical care to injured employees. Because additional categories
are added, the volume of appeals to the commission for Medical Dispute Resolution
may increase for the resolution of preauthorization and concurrent review
disputes; however, the opportunity for the requestor to discuss a possible
denial with the carrier may eliminate some disputes. If the number of medical
disputes increases, there will be additional cost to the commission to resolve
these disputes.
Local government and state government as covered regulated entities, will
be impacted in the same manner as persons required to comply with the rule
as proposed to be amended.
Tom Hardy has determined that for each year of the first five years the
rule as proposed is in effect, the public benefits anticipated as a result
of enforcing the rule will be an improved system for prospective and concurrent
review of health care that will provide positive benefits to all participants
in the system. The participants in the system are: injured employees, employers,
carriers and health care providers.
Preauthorization is prospective utilization review. Concurrent review is
review of the continuation of treatment beyond previously approved health
care. The intent of the list is to effect cost containment while ensuring
employee access to quality health care, and to prevent the injured employee
from being subjected to unnecessary care by assuring the appropriate utilization
of services and treatments included on the list. Any savings that result from
elimination of unnecessary services or treatments has a positive financial
impact for carriers, and for employers who ultimately pay insurance premiums.
The intent of amendments to §134.600 is to comply with statutory mandates
in the Texas Labor Code as amended by HB-2600, adopted during the 2001 Texas
Legislative Session. The commission has included additional requirements to
achieve the joint statutory purposes of the timely delivery of appropriate
medical care and effective medical cost containment.
The enactment of HB-2600 establishes carrier liability for the costs related
to non-emergency spinal surgery under the provision of §413.014 and basically
directs that all non-emergency spinal surgery procedures require preauthorization
and concurrent review for the continuation of treatment beyond previously
approved health care. The mandate requires the commission to specify by rule
which health care treatments and services require express preauthorization
as well as the health care treatments and services that may require concurrent
review. HB-2600 identifies categories of services for which the commission
must require express preauthorization and concurrent review. The system further
benefits by the statutory definition of an "investigational or experimental
service or device" and the statute and proposed rule include this category
in the list of health care treatments and services that require preauthorization
and concurrent review.
The amended language should benefit all participants in the system. The
amended language establishes a requestor and specifies that a requestor is
the treating doctor, prescribing or referred doctor, or the injured employee.
This limits who can request preauthorization and concurrent review to those
persons who will have access to the medical records to justify the need for
requested treatment, and provides a more efficient and more effective process.
This benefits the injured employee, the health care provider, and the carrier.
The rule plainly establishes when the carrier is liable and when the carrier
is not liable for the payment of the services which require preauthorization
and/or concurrent review, and/or any other services requested under precertification.
Through simplified language, the meanings of both preauthorization and concurrent
review are established, thereby reducing confusion and misinterpretation.
The proposed amended rule contains expanded language to clarify the steps
required by the requestor to submit and the carrier's delegated agent to process
requests for preauthorization and concurrent review. This also provides a
more efficient and effective process beneficial to the injured employee, health
care provider, and carrier.
The addition of concurrent review allows case management and cost containment
by the carrier and ensures ongoing treatment of the injured employee without
delay or interruption. The addition of precertification allows prospective
carrier review of health care not listed in subsection (h), encourages communication
between the doctor and the carrier, and provides assurance of carrier liability
for approved health care other than those treatments and services which require
preauthorization under subsection (h). This provides quality health care and
cost containment and may reduce disputes by encouraging communications regarding
appropriatness of care.
The expanded language regarding record keeping, requiring the requestor
to maintain records, as well as the carrier, will primarily be of benefit
to the injured employee and the requestor by facilitating the resolution of
a dispute that might arise. The tracking of summary information by the carriers
will allow monitoring and tracking of the volume of requests for the services
and treatments that require express preauthorization and concurrent review
under this section. This information will provide insight into the effectiveness
of the process in achieving the goals of cost containment and delivery of
quality medical care. It should also help the commission identify carriers
and doctors whose practices are outside of norms. If identified, this would
allow the commission to take action against the doctors to improve their practices.
This will improve access to reasonable and necessary care and reduce costs.
The carrier and their designated agents are provided the opportunity to
prospectively review and determine the medical appropriateness of the treatments
or services prior to the delivery of the health care. It is beneficial to
the carrier and the requestor, that the requestor is afforded the opportunity
to discuss the medical necessity of treatments prior to a denial of the preauthorization
request for treatment. This should reduce the number of disputes, which in
turn benefits doctors, carriers, employees, employers, and the commission.
Further, the rule addresses a requestor's ability to timely request resolution
to disputes over the denials of preauthorization and/or concurrent review
by the carrier, which benefits all parties to a dispute.
The injured employee will also benefit from the requirement that the requestor
be afforded the opportunity to discuss the denial of requested treatments
with an appropriate doctor or health care provider. This allows the injured
employee's medical needs to be discussed by appropriate medical professionals.
The opportunity to discuss the request with a doctor or health care provider
prior to a denial will enhance communication between requestors and the respondents
in the preauthorization process. The increased communication should reduce
the number of disputes, saving time for and expense to health care providers,
and facilitate the delivery of care to injured employees, as and when needed.
The benefits of the proposed amended rule to employers is the assurance
that their injured employees are receiving appropriate and medically necessary
treatment in a timely manner for their compensable injury in anticipation
of an early return-to-work. Conversely, the proposed rule will assist in the
prevention of unnecessary, costly treatment. In addition, savings that may
result from this preauthorization process should ultimately be reflected in
the cost to provide workers' compensation coverage to employees.
The expansion of the list of services that require preauthorization and
concurrent review should benefit all system participants as well. In addition
to the statutorily mandated list inclusions, the revision and addition of
language regarding preauthorization of psychiatric and psychological treatment,
acupuncture, physical medicine, manipulative treatments, and all rehabilitation
programs, clarifies the intent for use by both requestor and carrier. The
primary benefit of preauthorizing these services is cost control. Additional
benefits to the injured employee include protection from the possibility of
the utilization of unnecessary, experimental or investigational services or
devices, as well as the over utilization of other listed services and treatments.
Health care providers will be impacted as a result of the proposed rule
due to the changes to the list of items that will require preauthorization.
Health care providers that regularly prescribe or provide health care that
is listed in the rule will be required to request preauthorization more often
than is currently required. While administrative management of additional
requests may increase costs, the costs are expected to be offset by a more
efficient process and the statutory guarantee of payment for approvals.
There will be some anticipated economic costs to persons who are required
to comply with the amended rule as proposed. No economic costs are anticipated
for injured employees to comply with the requirements of the proposed amended
rule.
Some health care providers may experience minimal financial impact as a
result of the proposed amended rule. The financial impact may result from
an increase in the number of requests for preauthorization for newly added
services for compliance with HB-2600 and additional requirements imposed by
the commission. The costs are expected to be offset by more efficiently reviewing
and discussing the efficacy of treatment and treatment plans prior to the
delivery of the services. The prospective review and discussion and the use
of precertification are expected to reduce the number of costly disputes a
health care provider would submit.
Carrier costs may increase because the proposed amended list of treatments
or services requiring preauthorization is expanded to include new services
as well as those mandated by HB-2600. New mandated services requiring preauthorization
include: spinal surgeries, outpatient surgeries, investigational or experimental
services or devices, and several additions for cost containment. If not already
in place, the carrier or review company will be required to develop screening
criteria for these treatments and/or services, as well as develop criteria
for managing concurrent review. This may require the carrier to employ additional
personnel qualified to review the requests for appropriateness of initiating
or continuing specific treatment for a specific injury. The broader list of
items and use of a precertification process should help carriers prospectively
prevent unnecessary medical care from being provided, thus reducing medical
costs. Additional administrative costs to the carriers should be offset by
the carrier's ability to control costs in monitoring health care utilization,
and should be no more than is already required under Texas Department of Insurance
rules governing UR.
The cost savings to the employer affected by a broader amended list is
expected to reduce the medical costs per claim to the carrier, possibly resulting
in premium reductions to the employers and an overall savings to the system.
Savings that may result from a more efficient preauthorization process should
ultimately be reflected in the cost to provide workers' compensation coverage
to employees.
There will be no adverse economic impact on small businesses or on micro-businesses
as a result of the proposed rule amendments. There will be only a proportionate
difference in the cost of compliance for small businesses and micro-businesses
as compared to the largest businesses, including state and local government
entities. The same basic processes and procedures apply, regardless of the
size or volume of the business. The business size cost difference will be
in direct proportion to the volume of business that falls under the purview
of these proposed rules.
Comments on the proposal must be received by 5:00 p.m., September 20, 2001.
You may comment via the Internet by accessing the commission's website at
Commenters are requested to clearly identify by number the specific subsection
and paragraph commented upon. The commission may not be able to respond to
comments which cannot be linked to a particular proposed subsection. Along
with your comment, it is suggested that you include the reasoning for the
comment in order for commission staff to fully evaluate your recommendations.
Unspecified comments submitted will not be addressed.
Based upon various considerations, including comments received and the
staff's or commissioners' review of those comments, or based upon the commissioners'
action at the public meeting, the rule as adopted may be revised from the
rule as proposed in whole or in part (e.g. the addition or deletion of treatments
and services listed in subsection (h)). Persons in support of the rule as
proposed, in whole or in part, may wish to comment to that effect with reference
to specifics in the proposed rule amendments.
A public hearing on this proposal will be held on September 20, 2001, at
the Austin central office of the commission (Southfield Building, 4000 South
IH-35, Austin, Texas). Those persons interested in attending the public hearing
should contact the commission's Office of Executive Communication at (512)
804-4430 to confirm the date, time, and location of the public hearing for
this proposal. The public hearing schedule will also be available on the commission's
website at
www.twcc.state.tx.us
.
The amendment is proposed under: the Texas Labor Code, §401.011
which contains definitions used in the Texas Workers' Compensation Act; the
Texas Labor Code, §401.024, which provides the Commission the authority
to require use of facsimile or other electronic means to transmit information
in the system; the Texas Labor Code, §402.042, which authorizes the Executive
Director to enter orders as authorized by the statute as well as to prescribe
the form and manner and procedure for transmission of information to the Commission;
the Texas Labor Code, the Texas Labor Code: §402.061, which authorizes
the commission to adopt rules necessary to administer the Act; the Texas Labor
Code §406.010 that authorizes the commission to adopt rules regarding
claims service; the Texas Labor Code §408.021(a) that states an employee
who sustains a compensable injury is entitled to all health care reasonably
required by the nature of the injury as and when needed; the Texas Labor Code, §408.025,
which requires the Commission to specify by rule what reports a health care
provider is required to file; the Texas Labor Code §408.026, (as amended
by HB-2600, 2001 Texas Legislature) that requires the preauthorization of
spinal surgery; the Texas Labor Code, §409.021, which requires insurance
carriers to timely initiate or dispute compensation; the Texas Labor Code, §409.022,
which requires a notice of refusal to specify the insurance carrier's grounds
for disputing a claim and requires the reason to be reasonable; the Texas
Labor Code §413.002, that requires the commission to monitor health care
providers and carriers to ensure compliance with commission rules relating
to health care including medical policies and fee guidelines; the Texas Labor
Code §413.011 that requires the commission by rule to establish medical
policies relating to necessary treatments for injuries and designed to ensure
the quality of medical care and to achieve effective medical cost control;
the Texas Labor Code, §413.012 which requires the Commission to review
and revise medical policies and fee guidelines at least every two years to
reflect current medical treatment and fees that are reasonable and necessary;
the Texas Labor Code, §413.013 which requires the Commission by rule
to establish a program for prospective, concurrent, and retrospective review
and resolution of a dispute regarding health care treatments and services;
a program for the systematic monitoring of the necessity of the treatments
administered and fees charged and paid for medical treatments or services
including the authorization of prospective, concurrent or retrospective review
and a program to detect practices and patterns by insurance carriers in unreasonably
denying authorization of payment for medical services, and a program to increase
the intensity of review; the Texas Labor Code §413.014 (as amended by
HB-2600, 2001 Texas Legislature) that requires the commission to specify by
rule, except for treatments and services required to treat a medical emergency,
which health care treatments and services require express preauthorization
and concurrent review by the carrier as well as allowing health care providers
to request precertification and allowing the carriers to enter agreements
to pay for treatments and services that do not require preauthorization or
concurrent review. This mandate also states the carrier is not liable for
the cost of the specified treatments and services unless preauthorization
is sought by the claimant or health care provider and either obtained or ordered
by the commission; the Texas Labor Code §413.017 that establishes medical
services to be presumed reasonable when provided subject to prospective, concurrent
review and are authorized by the carrier; the Texas Labor Code §413.031,
that establishes the right to access medical dispute resolution; the Texas
Labor Code §414.007, that allows the review of referrals from the Medical
Review Division by the Division of Compliance and Practices; the Texas Labor
Code, §415.002 which establishes an administrative violation for an insurance
carrier to: unreasonably dispute the reasonableness and necessity of health
care, to violate a Commission rule or to fail to comply with the Act; the
Texas Labor Code §415.003 that establishes an administrative violation
for a health care provider to: administer improper, unreasonable, or medically
unnecessary treatment or services, to violate a commission rule, or to fail
to comply with the act; the Texas Labor Code §415.0035 that establishes
administrative violations for health care providers and carriers, including
a carrier denying preauthorization in a manner that is not in accordance with
commission rules; and the Texas Insurance Code, Article 21.58A, which provides
requirements for the certification of health care utilization review agents,
standards for utilization review, and provides for appeal of adverse determinations
of utilization review agents.
The proposed amended rule affects the following statutes: the Texas Labor
Code, §401.011 which contains definitions used in the Texas Workers'
Compensation Act; the Texas Labor Code, §401.024, which provides the
Commission the authority to require use of facsimile or other electronic means
to transmit information in the system; the Texas Labor Code, §402.042,
which authorizes the Executive Director to enter orders as authorized by the
statute as well as to prescribe the form and manner and procedure for transmission
of information to the Commission; the Texas Labor Code, the Texas Labor Code: §402.061,
which authorizes the commission to adopt rules necessary to administer the
Act; the Texas Labor Code §406.010 that authorizes the commission to
adopt rules regarding claims service; the Texas Labor Code §408.021(a)
that states an employee who sustains a compensable injury is entitled to all
health care reasonably required by the nature of the injury as and when needed;
the Texas Labor Code, §408.025 which requires the Commission to specify
by rule what reports a health care provider is required to file; the Texas
Labor Code §408.026, (as amended by HB-2600, 2001 Texas Legislature)
that requires the preauthorization of spinal surgery; the Texas Labor Code, §409.021,
which requires insurance carriers to timely initiate or dispute compensation;
the Texas Labor Code, §409.022, which requires a notice of refusal to
specify the insurance carrier's grounds for disputing a claim and requires
the reason to be reasonable; the Texas Labor Code §413.002, that requires
the commission to monitor health care providers and carriers to ensure compliance
with commission rules relating to health care including medical policies and
fee guidelines; the Texas Labor Code §413.011 that requires the commission
by rule to establish medical policies relating to necessary treatments for
injuries and designed to ensure the quality of medical care and to achieve
effective medical cost control; the Texas Labor Code, §413.012 which
requires the Commission to review and revise medical policies and fee guidelines
at least every two years to reflect current medical treatment and fees that
are reasonable and necessary; the Texas Labor Code, §413.013 which requires
the Commission by rule to establish a program for prospective, concurrent,
and retrospective review and resolution of a dispute regarding health care
treatments and services; a program for the systematic monitoring of the necessity
of the treatments administered and fees charged and paid for medical treatments
or services including the authorization of prospective, concurrent or retrospective
review and a program to detect practices and patterns by insurance carriers
in unreasonably denying authorization of payment for medical services, and
a program to increase the intensity of review; the Texas Labor Code §413.014
(as amended by HB-2600, 2001 Texas Legislature) that requires the commission
to specify by rule, except for treatments and services required to treat a
medical emergency, which health care treatments and services require express
preauthorization and concurrent review by the carrier as well as allowing
health care providers to request precertification and allowing the carriers
to enter agreements to pay for treatments and services that do not require
preauthorization or concurrent review. This mandate also states the carrier
is not liable for the cost of the specified treatments and services unless
preauthorization is sought by the claimant or health care provider and either
obtained or ordered by the commission; the Texas Labor Code §413.017
that establishes medical services to be presumed reasonable when provided
subject to prospective, concurrent review and are authorized by the carrier;
the Texas Labor Code §413.031, that establishes the right to access medical
dispute resolution; the Texas Labor Code §414.007, that allows the review
of referrals from the Medical Review Division by the Division of Compliance
and Practices; the Texas Labor Code, §415.002 which establishes an administrative
violation for an insurance carrier to: unreasonably dispute the reasonableness
and necessity of health care, to violate a Commission rule or to fail to comply
with the Act; the Texas Labor Code §415.003 that establishes an administrative
violation for a health care provider to: administer improper, unreasonable,
or medically unnecessary treatment or services, to violate a commission rule,
or to fail to comply with the act; the Texas Labor Code §415.0035 that
establishes administrative violations for health care providers and carriers,
including a carrier denying preauthorization in a manner that is not in accordance
with commission rules; and the Texas Insurance Code, Article 21.58A, which
provides requirements for the certification of health care utilization review
agents, standards for utilization review, and provides for appeal of adverse
determinations of utilization review agents.
Preauthorization, Concurrent Review,
and Precertification of Health Care
[
(a)
The insurance carrier
(carrier)
is liable for
the reasonable and necessary medical costs relating to the health care treatments
and services listed in subsection (h) of this section, required to treat a
compensable injury, when any of the following situations occur:
(1)
there is
an
[
(2)
requestor
the treating doctor,
the prescribing
or referral doctor
[
(A)
preauthorization (prospective approval)
of any health care listed in subsection (h) of this section prior to providing
the health care treatments or services;
(B)
concurrent review (an extension of treatment
or services beyond previous approval) of any health care listed in subsection
(h) of this section; or
(C)
precertification or agreement under subsection
(i)(2) of this section; or
(3)
when ordered by the commission.
(b)
The carrier is not liable under subsection (a) of
this section if there has been a final adjudication that the injury is not
compensable or that the health care was provided for a condition unrelated
to the compensable injury. "Final adjudication" means that the commission
has issued a final decision or order that is no longer appealable by either
party.
[
(c)
The [
(d)
The requestor shall request preauthorization from
the carrier prior to providing proposed treatments or services. An extension
of treatments or services beyond what was preauthorized requires concurrent
review and approval prior to treatments or services. Concurrent review may
be requested prior to the conclusion of the specific number of treatments
or period of time preauthorized. The requestor shall:
[
(1)
contact the carrier or carrier's delegated
agent by telephone or facsimile to request preauthorization or concurrent
review;
(2)
include in the request for preauthorization
or concurrent review:
(A)
the specific treatment or service listed in subsection
(h) of this section;
(B)
the specific number of treatments or services and/or the
specific period of time; and
(C)
the medical information to substantiate the need for the
treatment or service recommended
(D)
an accessible telephone number and also may designate a
facsimile number for use by the carrier or the carrier's delegated agent;
and
(3)
if requested by the carrier or the carrier's
delegated agent, provide the:
(A)
name of the health care provider performing the treatment
or service, if other than the requestor; and
(B)
facility name and estimated date of proposed treatment
or service.
(e)
The carrier or carrier's delegated agent shall:
[
(1)
approve or deny requests for preauthorization
or concurrent review based solely upon the reasonableness and medical necessity
of the health care required to treat the injury, regardless of:
(A)
unresolved issues of compensability, extent of or relatedness
to the compensable injury;
(B)
the carrier's liability for the injury; or
(C)
the fact that the employee has reached maximum medical
improvement.
(2)
prior to the issuance of a denial, afford
the requestor a reasonable opportunity to discuss the clinical basis for a
denial with the appropriate doctor or health care provider performing the
review;
(3)
contact the requestor by telephone or
facsimile with the decision to approve or deny the request:
(A)
within three working days of receipt of a request for preauthorization;
or
(B)
within one working day of receipt of a request for concurrent
review;
(4)
send written notification of the approval
or denial of the request, within one working day of the decision to:
(A)
the employee;
(B)
the employee's representative; and
(C)
the requestor, if not previously sent by facsimile;
(5)
include in an approval the specific:
(A)
treatment or service; and
(B)
number of treatments or services and/or the specific period
of time;
(6)
include in a denial:
(A)
plain language notifying the injured employee of the right
to appeal in a timely manner under subsection (g) of this section; and
(B)
principal reasons for, clinical basis for, and description
or source of screening criteria used in making the denial.
(f)
The [
(g)
If the response is a denial of preauthorization or
concurrent review, the requestor is entitled to a review of the medical necessity
for the denied health care.
[
(1)
The requestor may, within 5 working days
of receipt of a written denial, request that the carrier reconsider the denial
and shall document the reconsideration request.
(2)
The carrier shall respond:
(A)
within 5 working days of receipt of a request for reconsideration
of denied preauthorization; or
(B)
within 1 working day of receipt of a request for reconsideration
of denied concurrent review.
(3)
The requestor may dispute the denial of
a reconsideration request in accordance with Texas Labor Code, §413.031
and §133.305 of this title (relating to Medical Dispute Resolution).
(h)
The health care treatments and services requiring
preauthorization and/or concurrent review
[
(1)
inpatient hospital admissions including:
[
(A)
primary treatment(s) and/or service(s);
and
(B)
length of stay;
(2)
outpatient surgical or other ambulatory
surgical services;
(3)
spinal surgery;
(4)
except as part of a rehabilitation program,
repeat evaluations and interviews, all psychological testing, and all psychotherapy;
[(2)
psychiatric or psychological therapy
or testing except as a part of work hardening;]
(5)
[
(6)
[
(7)
[
(8)
[
(9)
[
(10)
[
(11)
[
(12)
all physical medicine and rehabilitation
modalities and procedures (excluding tests and measurements) beyond 18 sessions,
and/or beyond 18 sessions following surgery;
(13)
all rehabilitation programs, including
but not limited to:
(A)
work conditioning/general occupational rehabilitation;
(B)
work hardening/comprehensive occupational rehabilitation;
(C)
outpatient medical rehabilitation; and
(D)
chronic pain management/interdisciplinary pain rehabilitation;
[(10)
physical therapy or occupational therapy
beyond eight weeks of treatment;]
[(11)
work hardening, in excess of six weeks
(limited to a one-time two-week extension);]
[(12)
work conditioning, in excess of four
weeks (limited to a one-time two-week extension);]
(14)
[
(15)
[
(16)
[
(17)
[
(18)
manipulative treatments or manipulations
after 18 visits that include either manipulative treatment or manipulations;
and
(19)
any investigational or experimental service
or device for which:
(A)
there is no current or investigational CPT code; or
(B)
there is early, developing scientific or clinical evidence
demonstrating the potential efficacy of the treatment, service, or device
but is not yet broadly accepted as the prevailing standard of care.
(i)
This subsection governs requests for precertification
and/or requests for concurrent certification of ongoing health care that does
not require preauthorization and/or concurrent review under subsection (h)
of this section.
(1)
The requestor may voluntarily request precertification
and/or concurrent certification of on-going treatment plans, treatments and
services, from the carrier.
(2)
The carrier may voluntarily precertify and agree to pay
for health care requested under paragraph (1) of this subsection.
(3)
Carrier precertification, concurrent certification, or
agreement to pay, subjects the carrier to liability in accordance with subsections
(a) and (b) of this section.
(4)
Denials under this subsection are not subject to preauthorization
dispute resolution.
(j)
An increase or decrease in review and
preauthorization controls may be applied by the commission to individual doctors
or individual workers' compensation claims, in accordance with the Texas Labor
Code and other sections of this title.
(k)
Requests for preauthorization and/or concurrent
review shall be responded to in accordance with rules in effect at the time
of submission of the request. Where any terms or portions of this section
are determined by a court of competent jurisdiction to be invalid, the remaining
terms and provisions of this section shall remain in effect to the extent
possible. If a portion of this section is declared invalid in a final judgment
that is not subject to appeal, or is suspended by order of the court which
is given immediate effect, this section as it existed prior to the effective
date of this section shall remain in effect for all requests for preauthorization
to the extent necessary.
(l)
Section 133.206 will remain in effect
only for recommendations or resubmissions of recommendations for spinal surgery
submitted prior to the effective date of this section.
(m)
The effective date of this section is
March 1, 2002.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on July 20, 2001.
TRD-200104207
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Earliest possible date of adoption: September 2, 2001
For further information, please call: (512) 804-4287
If an
] HMO or preferred
provider carrier
may not require
[
requests such
] an
attachment
unless it has given the physician or provider the disclosure
mandated by this section at least 60 calendar days before requiring the attachment
as an element of the clean claim
and
complied
[
fails
to comply
] with paragraphs (1), (2), or (3) of this section[
, the
request will not extend the statutory claims payment period
].
Claims filed during the 60 day period after receipt of the disclosure do not
have to include the required attachment identified in the disclosure.
If an
] HMO or preferred
provider carrier
may not request
[
requests
] additional
elements as part of a clean claim
unless it has given the physician or
provider the disclosure mandated by this section at least 60 calendar days
before requiring the additional element as an element of the clean claim
and
complied
[
fails to comply
] with paragraphs (1),
(2), or (3) of this section[
, the request will not extend the statutory
claims payment period
].
or
] a delegated
claims processor
, or any other entity, including a clearinghouse or a
repricing company, designated by the HMO or preferred provider carrier to
receive claims
. The date of claim payment is as determined in §21.2810
of this title (relating to Date of Claim Payment).
Payment of 85% of the contracted rate on the clean claim is not an admission
that the HMO or preferred provider carrier acknowledges liability on that
claim.
]
Upon completion of the audit, if the
] HMO or preferred provider carrier
shall complete the audit within
180 calendar days from the date the clean claim is received. If the HMO or
preferred provider carrier
determines
upon completion of the audit
that a refund is due from a physician or provider, such refund shall
be made within 30 calendar days of the later of written notification to the
physician or provider of the results of the audit or exhaustion of any subscriber
or patient appeal rights if a subscriber or patient appeal is filed before
the 30-calendar-day refund period has expired, and may be made by any method,
including chargeback against the physician or provider, or agreements by contract.
The written notification of the results of the audit shall include a listing
of the specific claims paid and not paid pursuant to the audit, including
specific claims and amounts for which a refund is due. Unless otherwise agreed
to by contract, if an HMO or preferred provider carrier intends to make a
chargeback, the written notification shall also include a statement that the
HMO or preferred provider carrier will make a chargeback unless the physician
or provider contacts the HMO or preferred provider carrier to arrange for
reimbursement through an alternative method. Nothing in this provision shall
invalidate or supersede existing or future contractual arrangements that allow
alternative reimbursement methods in the event of overpayment to the physician
or provider.
the HMO or preferred provider carrier
determines that
] additional payment is due to the physician or provider,
such [
additional
] payment shall be
made
within 30 calendar
days after the completion of the audit.
pay the
]
contracted penalty rate for late payment set forth in the contract between
the provider or physician and the HMO or preferred provider carrier.
Failure to pay a clean claim correctly or denial of a valid clean claim that
results in a failure to comply with the requirements of §21.2807(b) and §21.2809(a)
and (c) of this title is considered a violation of Article 20A.18B(c) or Article
3.70-3C §3A(c).
Any amount previously paid or any charge for a
non-covered service shall be deducted from the payment. This section shall
not apply when there is failure to comply with a contracted claims payment
period of less than 45 calendar days as provided in §21.2802(25)(A) of
this title (relating to Definitions), and Article 3.70-3C, §3(m) or Article
20A.09(j) of the Insurance Code.
Part 2.
TEXAS WORKERS' COMPENSATION COMMISSION
(a)
] Lifetime income benefits begin
to accrue as provided by the Texas Workers' Compensation Act (the Act),
§408.082
[
§4.22
], and are payable retroactively
from the date of disability:
the
Act, §4.31
] (a)(2)
, (3),
[
-
] (4)
,
or (7)
; or
the Act, §4.31
] (a)(1),
(5), or (6)[
, or §4.31(b)
].
(b)
] The weekly benefits paid under
this section shall not be less than the minimum weekly benefit established
by the commission under the Act,
§408.062
[
§4.12
].
(c)
] In a claim where total and
permanent loss of use is pending as provided under the Act,
§408.161
[
§4.31
](b), either party may request a benefit review
conference to determine whether a lifetime income benefit designation is appropriate.
Chapter 133.
GENERAL MEDICAL PROVISIONS
63s
] filed with the
Commission
[
commission
] on or after July 1, 1998
and prior to March 1, 2002. On or after
March 1, 2002, spinal surgery shall be subject to §134.600 as it may
be amended or revised.
Form TWCC-
63's
[
63s
] filed
prior to July 1, 1998, shall be subject to the rule in effect at the time
the form was filed with the Commission.
Chapter 134.
BENEFITS--GUIDELINES FOR MEDICAL SERVICES, CHARGES, AND PAYMENTS
Procedure for Requesting Pre-Authorization
of Specific Treatments and Services
].
a documented life threatening
degree of a medical
] emergency
, as defined in §133.1 of this
title (relating to Definitions for Chapter 133)
necessitating treatments
or services listed in subsection (h) of this section;
his/her designated representative
], or
the injured employee
(employee)
has received
approval
[
pre-authorization
] from the carrier
through:
[
prior to the health care treatments or services; or
]
Second opinions for spinal surgery are addressed in Chapter
133, Subchapter C, of this title (relating to Second Opinions for Spinal Surgery).
]
insurance
] carrier shall designate an accessible
direct telephone number, and may also designate a facsimile number for use
by the
requestor
[
treating doctor or the injured employee
] to request
preauthorization or concurrent review
[
pre-authorization
] during normal business hours. The direct number shall
be answered or the facsimile responded to, by the carrier's agent who is delegated
to approve or deny requests for
preauthorization or concurrent review
[
pre-authorization
], within the time limits established
in subsection (e) of this section.
Prior to
the date of the proposed treatment or service, the treating doctor, or his/her
designated representative, shall notify the insurance carrier's delegated
agent by telephone or transmission of a facsimile of the recommended treatment
or service listed in subsection (h) of this subsection. Notification shall
include the medical information to substantiate the need for the treatment
or service recommended. If requested to so by the carrier, the treating doctor
shall also notify the insurance carrier of the location and estimated date
of the recommended treatment or service, and the name of the health care provider
performing the treatment or service, if other than the treating doctor.
]
Within three working days of the treating doctor's request for pre-authorization,
the insurance carrier's delegated agent shall notify the treating doctor by
telephone or transmission of a facsimile of the insurance carrier's decision
to grant or deny pre-authorization. When the insurance carrier denies or approves
pre-authorization, the insurance carrier shall send written approval, or,
if denying pre-authorization, documentation identifying the reasons for denial.
Notification shall be sent to the injured employee, injured employee's representative
if known, and the treating doctor, or the treating doctor's designated representative,
within 24 hours after notification of denial or approval.
]
insurance
] carrier
and requestor
must maintain accurate records to reflect information regarding the
preauthorization or concurrent review requests,
[
pre-authorization
request and
] approval/denial
, decisions, and appeals, if any. If
requested by the commission, the carrier and requestor (other than an employee)
shall submit summary information with the total numbers of requests by category
of treatment or service, and the total number of approvals, denials, and appeals
in the form and format prescribed by the commission
[
process
].
If a dispute arises over the denial
of pre-authorization by the insurance carrier, the doctor or the injured employee
may proceed to a medical dispute resolution as described in the Act, §8.26,
and §133.305 of this title (relating to Request for Medical Dispute Resolution).
]
pre-authorization
]
are:
all nonemergency hospitalizations, ambulatory surgical center care, and transfers
between facilities;
]
(3)
] all external and implantable
bone growth stimulators;
(4)
] all chemonucleolysis,
acupuncture,
facet, or trigger point injections;
(5)
] all nonemergency myelograms,
discograms, or surface electromyograms;
(6)
] unless otherwise specified,
repeat individual diagnostic study, with a fee established in the current
Medical Fee Guideline of greater than $350 or DOP (documentation of procedure)
.
(Diagnostic study is defined as any test used to help establish or
exclude the presence of disease/injury in symptomatic persons; the test can
help determine the diagnosis, screen for specific diseases/injury, guide the
management of an established disease/injury and help formulate a prognosis.);
(7)
] video fluoroscopy;
(8)
] radiation therapy or chemotherapy;
(9)
] biofeedback except as a part
of
a preauthorized rehabilitation program
[
work hardening
];
(13)
] all durable medical equipment
in excess of $500 per item
(either purchase or expected cumulative rental)
and all TENS units;
(14)
] nursing home, convalescent,
residential, and all home health care services and treatments;
(15) pain clinics,
] chemical dependency
clinics, or weight loss clinics; [
and
]
(16)
] all nonemergency dental services,
including reconstructive dental care or dental appliances
;
[
.
]
Chapter 166.
WORKERS' HEALTH AND SAFETY--ACCIDENT PREVENTION SERVICES