28 TAC §126.14
The Commissioner of the Division of Workers' Compensation,
Texas Department of Insurance adopts new §126.14, concerning the treating
doctor examination to define the compensable injury. The new section is adopted
with changes to the proposed text as published in the February 3, 2006, issue
of the
Texas Register
(31 TexReg 671).
The new section is necessary as a result of House Bill 7, 79th Legislature,
Regular Session, effective September 1, 2005, which created Labor Code §408.0042
for the purpose of defining an injured employee's compensable injury. Labor
Code §408.0042 requires the injured employee to attend one examination
per workers' compensation claim with the injured employee's treating doctor
at the request of the insurance carrier. This examination is a voluntary option
for insurance carriers to utilize as a tool in managing claims. The examination's
purpose is to have the injured employee's treating doctor identify the specific
injuries that were caused or aggravated by the work-related incident or activities.
The insurance carrier will make a determination as to whether the injuries
and diagnoses identified by the doctor are accepted as part of the compensable
injury. The adopted rules also provide direction for participants in a workers'
compensation health care network established under Insurance Code Chapter
1305.
The rule has been restructured and incorporates editorial and grammatical
changes. Changes have also been made as a result of public comment; however,
no substantive changes were made to the rule as proposed. Proposed subsection
(d) has been deleted as a result of concerns regarding electronic reporting
in TXCOMP and accessibility to all appropriate parties, and the subsections
have been relettered appropriately. The various references to TXCOMP in the
section have been deleted.
Subsection (a) relates to the scheduling of a single examination to define
the compensable injury. An insurance carrier electing to utilize this provision
must contact the treating doctor and schedule an appointment for the injured
employee. The time period of 15 days from the date the notice is sent to the
date of the examination was selected to provide ample time for mailing and
to inform the injured employee that an examination had been scheduled. This
time period allows adequate time for an injured employee to make any scheduling
arrangements for the examination to accommodate time off work, transportation,
and other accommodations.
Subsection (b) provides that the insurance carrier shall schedule the examination
with the injured employee's treating doctor. The insurance carrier will need
to check with the injured employee, the injured employee's legal representative
(if any), the workers' compensation health care network, and/or the Division
to verify that the doctor with whom the examination is being scheduled is
the treating doctor and that no requests for change of treating doctor have
been received or are pending. If there is a question, the examination should
be delayed until the correct doctor is verified. In paragraph (1), additional
changes were made to clarify the penalties associated with an insurance carrier's
failure to schedule the examination with the injured employee's treating doctor
of record. If a change in treating doctor occurs, the timing of the doctor
change will impact how the results of the examination will be considered.
If a doctor change is requested prior to the examination notice, the results
of the examination from the previous treating doctor may not be used to define
the compensable injury. The insurance carrier may make a new request for an
examination with the correct treating doctor. If the doctor change is requested
after the examination notice, the examination results may be used because
the results came from the treating doctor at the time the notice was sent.
Subsection (c) requires an insurance carrier to send a written notice of
examination. Minor changes were made to the compulsory language based on public
comment. Paragraph (4)(A) complies with the requirement to provide injured
employees with information in plain language and to inform injured employees
that they are required to attend this examination. Paragraph (4)(B) adds a
requirement that the insurance carrier includes the name and phone number
of the person to be contacted if the doctor named in the notice of examination
is not the treating doctor. The injured employee should not attempt to change
treating doctors after being informed the insurance carrier has scheduled
this examination. Paragraph (4)(C) adds language informing the injured employee
of the requirement that a rescheduled examination take place within seven
days of the originally scheduled examination or at the treating doctor's first
available appointment time, if no appointments are available during the seven-day
period.
Subsection (d) addresses the rescheduling of the examination if the injured
employee is unable to attend at the time scheduled by the insurance carrier.
Latitude has been provided for rescheduling of the examination if the doctor
does not have an available appointment time during that period. Subsection
(e) details the consequences if the injured employee fails to attend the examination.
Subsection (f) provides the minimum required information that shall be
included in the treating doctor's narrative report. This includes direction
for situations where additional testing is required to ascertain the full
extent of the injury. New mailing requirements have been provided. The subsection
also outlines how compensable injuries and diagnoses are to be identified
in the treating doctor's narrative. As a result of public comment, subsection
(f)(3) requires that the treating doctor explain how the mechanism of injury
caused a worsening of a condition if an aggravation of an ordinary disease
of life or a preexisting condition is identified as part of the compensable
injury.
Subsection (g) clarifies the process when diagnostic testing is required
to define the compensable injury. Subsection (h) clarifies the allotted time
and distribution requirements for the treating doctor to submit the narrative
report from this examination.
Subsection (i) outlines information regarding the reimbursement associated
with this type of examination. The reimbursement is $350, equivalent to the
reimbursement for a required medical examination. Since this examination is
for administrative purposes that require additional documentation and its
results have significant bearing on the claim, it is deserving of a higher
reimbursement than for treatment examinations. Testing necessary to define
the compensable injury shall be reimbursed in accordance with the Medical
Fee Guideline §134.202. Testing for network claims shall be reimbursed
in accordance with the contract between the health care provider and the network.
Testing necessary to confirm or rule out a diagnosis shall not be retrospectively
reviewed for compensability if the treating doctor has documented the necessity
for the test in defining the injury.
Subsection (j) outlines the insurance carrier's responsibilities once the
treating doctor has submitted the narrative report defining the injuries and
diagnoses the doctor determines were caused by the mechanism of injury. Changes
were made to clarify the intent of this subsection as it pertains to other
rules and the Act. The revised process (using PLNs rather than TXCOMP) requires
that any specific diagnoses or injuries documented in the treating doctor's
narrative report that the insurance carrier does not accept as part of the
compensable injury must be denied in accordance with §124.2. Any injury
or diagnosis documented in the treating doctor's narrative report that is
not specifically denied via a Plain Language Notice (PLN), PLN-1 or PLN-11
will be considered accepted by the insurance carrier as part of the compensable
injury. The terms "symptoms and conditions" were deleted from subsection (j)(1).
Changes to this paragraph also address the concerns of commenters regarding
the 60-day waiver period. The language clarifies the intent of the paragraph
that the insurance carrier may not use this examination to diminish an injury
established under Labor Code §409.021. Subsection (j)(2) reflects the
requirements of §124.3(e) and Insurance Code §1305.153(e).
Subsection (k) informs the injured employee of the right to request a benefit
review conference if the insurance carrier denies the compensability of specific
injuries or diagnoses listed in the treating doctor's report.
Subsection (l) outlines the preauthorization requirements for any treatment
for an injury or diagnosis identified from this examination and denied by
the insurance carrier. Language was added to the subsection to clarify that
the preauthorization requirement continues only until an injury or diagnosis
denied by the insurance carrier is determined through dispute resolution or
agreement of the parties to be part of the compensable injury.
Subsection (m) outlines when a health care provider has the right to pursue
dispute resolution for an injury or diagnosis identified from this examination
that the insurance carrier has denied. The subsection was restructured to
clarify the circumstances when a health care provider may pursue an extent
of injury dispute.
Subsection (n) indicates that once the insurance carrier accepts specific
injuries and diagnoses as related to the compensable injury, treatment for
these injuries and diagnoses shall not be reviewed for compensability.
General Comment: Some commenters expressed concern that this rule leaves
the door open for the injury to expand and build when it appears the statute
was intended to end the cycle where a clear-cut injury begins to "morph" into
other regions of the body. The commenters suggested that the insurance carrier
should be able to obtain a commitment from the treating doctor's findings,
as to what the injury is and all parties should be bound to this assessment.
Agency Response: The Labor Code §408.0042 has not changed or superseded §409.021.
Section 408.0042 provides a tool to the insurance carrier for defining the
compensable injury at the time of the examination. However, injured employees
are entitled to all health care reasonably required by the nature of the injury.
There are circumstances where a compensable injury legitimately progresses
beyond the initial diagnosis. Treatment for these new diagnoses cannot be
restricted simply because the diagnosis had not developed at the time of the
treating doctor's examination. If a carrier does not believe that the new
diagnoses are a legitimate progression of the compensable injury, it can dispute
the diagnoses using the extent of injury process.
Comment: Some commenters believe this rule moves beyond the direction of
Labor Code §408.0042(f), which says the Division may adopt rules "relating
to requirements for a report under this section." Other commenters suggested
the Division not attempt to micro-manage the process and only be involved
in the process when there is a dispute.
Agency Response: The rule provisions only address the parameters of the
process to ensure that the mandates of the Act are accomplished. For the process
to operate efficiently, it is necessary that a uniform process and procedure
be put in place to ensure all participants are aware of their rights and responsibilities,
as well as to minimize the likelihood of disputes. The Division is only involved
when dispute resolution is requested and the rule does not insert unnecessary
regulatory intervention into the process. Certain requirements such as timeframes,
content and distribution are necessary to minimize the potential for disputes
and ensure a timely process. Labor Code §§402.00114(a), 402.021
and 402.061 provide the rationale, as well as the authority, for development
of a uniform process.
TXCOMP Comment: Numerous commenters indicated concern about conducting
business in TXCOMP at this point in time, from concern over certain participants
not having internet or claim-specific access, to operational issues when the
system is down, as well as confidentiality issues. Several commenters recommended
that the Division develop a form that uniformly handles the process instead.
Agency Response: The Division acknowledges commenters' concerns and will
not be implementing the treating doctor examination to define the compensable
injury process electronically at this time. It is anticipated that as technology
advances, this process may be incorporated into an electronic system to reduce
paper usage and promote higher levels of service some time in the future.
At this time, a paper process will be used. The Division declines to create
a new form, but is specifying in the rule the information and contents required
for the various submissions. This includes compulsory language, minimum required
information, contents of reports, and distribution requirements. The information
requested does not include any information that would not have been required
by TXCOMP.
Subsection (a): Several commenters stated that because of scheduling restrictions,
the insurance carrier will have to pay a minimum of 24 days of benefits before
the examination may take place making it more cost effective to simply dispute
the questionable portions of the claim or to deny the claim in its entirety.
During this 24-day period, the health care provider may be providing treatment
for non-compensable parts of the injury for which the provider may not receive
reimbursement, which is not in keeping with the intent of the statute.
Agency Response: The Division disagrees. This examination does not have
to occur before an insurance carrier may dispute all or part of an injury.
Labor Code §408.0042 is just one tool available to insurance carriers
to help define the compensable injury. There are potential advantages and
disadvantages the insurance carrier must weigh to determine when and how to
use this tool. If an insurance carrier identifies questionable portions of
a claim, it may file a contest of compensability without the added expense
and delay that may be associated with this examination. The only restriction
is the requirement that the injured employee be at least eight days post-injury
when the examination is requested. The requirement that an examination not
be scheduled to occur earlier than 15 days from when the notice of examination
is sent is to allow the injured employee time to receive sufficient notice
that an examination has been scheduled to make arrangements for time off work,
transportation, or other accommodations.
Subsection (b): Several commenters requested information on how an insurance
carrier was to know if a change of treating doctor had been requested and
expressed concern over the ability to verify the treating doctor. A commenter
suggested adding the language included in the preamble of the proposed rule
regarding use of the examination results.
Agency Response: An insurance carrier has the responsibility to communicate
with the injured employee, the representative (if any), the injured employee's
network and/or the Division (for non-network claims) to verify if a request
to change doctor has been submitted. The Division concurs with the suggestion
and has added language indicating the examination results may be used to define
the compensable injury in situations where a change of treating doctor is
requested after the notice of the examination has been sent by the insurance
carrier.
Comment: Some commenters suggested that the burden should be on the injured
employee to notify the insurance carrier of a change to treating doctor when
a request for an examination has been sent. Numerous commenters recommended
adding a subsection (b)(3) to reflect language from the preamble advising
the injured employee not to change doctors during the treating doctor examination
process. The commenters also suggested clarifying that requesting a doctor
change after notice of the treating doctor examination was sent will not invalidate
the examinations results and will not be a violation.
Agency Response: If the injured employee has requested to change treating
doctors, he/she should notify the insurance carrier immediately upon receipt
of notice of the examination. Other rules establish the procedures an injured
employee must follow to change doctors. The Division reminds an insurance
carrier that it remains responsible for exercising due diligence in ascertaining
whether an injured employee has changed doctors prior to scheduling an examination.
The Division does not have the authority to impose a moratorium on treating
doctor changes, especially when there is a workers' compensation health care
network involved; however, it has added the recommended language to the compulsory
language required on the notice of examination. Subsection (b)(2) was changed
to clarify when the report of the examination may be used.
Subsection (b)(1): Several commenters suggested the Division remove the
administrative penalty associated with failure to verify the treating doctor,
indicating the inability to use the report should be sufficient penalty.
Agency Response: Labor Code §408.0042(b) specifically provides "A
medical examination . . . shall be performed by the employee's treating doctor."
It is only reasonable that if the examination is to be performed by the treating
doctor then it is necessary that the insurance carrier schedule the examination
with the treating doctor and the language of subsection (b) has been changed
to clarify this point. An insurance carrier has the duty to communicate with
the injured employee, the representative (if any), the injured employee's
network and/or the Division (for non-network claims) to verify if a request
to change doctors has been submitted. The Division reminds insurance carriers
that if the examination is scheduled with a doctor other than the treating
doctor, then the insurance carrier is not in compliance with the Act as well
as the rules and administrative penalties may be assessed. It is not necessary
for the Division to specify in the text of a rule that it can take administrative
action against insurance carriers for violations of the statute and/or rules
and that language has been removed as unnecessary. The Division has been provided
statutory authority to take enforcement action for violations of the statute
and rules, as necessary.
Subsection (b)(2): A commenter indicated the word "compensable" should
be inserted before "injury" in the second sentence of this paragraph since
it provides that the results of an improper examination shall not be used.
Agency Response: The Division agrees and has made the change.
Subsection (c)(4)(A): A commenter suggested that the compulsory language
required in the notice of examination be changed to comply with plain language
requirements, specifically to clarify for the injured employee the meaning
of "compensable." The commenter pointed out this subsection provides compulsory
language that informs the injured employee of rights and responsibilities
related to this examination. The commenter believes that since this letter
is notification that the examination has been scheduled, the sentence should
be changed to an affirmative directive.
Agency Response: The Division agrees and has made the suggested changes.
The rule has been changed to indicate the examination's purpose is to define
the injuries and diagnoses "that resulted from the work-related incident or
activities."
Subsection (c)(4)(C): A commenter pointed out that no penalty amount is
defined for an injured employee that fails to attend this examination without
good cause. The commenter questions whether a specific penalty amount should
be identified, and if so, who would administer the penalty.
Agency Response: The Division will make a determination as to whether there
was good cause and will assess any penalty found to be appropriate based on
Labor Code §408.0042, §415.021, and Division rules.
Comment: A commenter suggested that language directing that the examination
be rescheduled within seven days of the original examination date be included
in the notice requirements of subsection (c)(4)(C).
Agency Response: The Division agrees that the timeframe for rescheduling
the examination is an important requirement that the injured employee should
be made aware of and has made the suggested change.
Subsection (e): A commenter suggested the penalty for failure to attend
this examination be consistent with the penalties for missed required medical
examinations and designated doctor examinations, allowing an insurance carrier
to stop temporary income benefits until the injured employee attends.
Agency Response: The Division disagrees. Application of this form of penalty
for failing to attend the treating doctor examination to define the compensable
injury was not included in the statute. The Division points out the legislature
amended the penalties associated with failure to attend examinations. Temporary
income benefits may only be stopped if an injured employee fails to attend
a designated doctor appointment without good cause. This penalty option was
removed from required medical examinations.
Subsection (f)(3): A commenter suggested when a doctor includes a diagnosis
that is typically an ordinary disease of life, the doctor must describe how
the condition has been worsened by the compensable injury in his report. Another
commenter expressed favor for requiring a treating doctor to describe the
mechanism of injury and how the diagnoses and injuries the doctor is treating
were caused by the mechanism of injury.
Agency Response: The Division agrees this will be valuable information
and has changed subsection (f)(3) to indicate the report shall explain how
the mechanism of injury caused a worsening or exacerbation of the condition
when the doctor identifies an aggravation of a preexisting condition, which
includes an ordinary disease of life.
Comment: A commenter indicated there was no provision in the rule that
a doctor cannot withhold a known diagnosis or what the penalty would be if
such occurred.
Agency Response: Labor Code §408.0042(c) requires a doctor to list
all injuries and diagnoses related to the compensable injury. Section 126.14
has been changed to clarify this requirement in subsection (f)(3). The Division
reminds doctors that failure to accurately report all diagnoses identifiable
at the time of the examination could be an administrative violation.
Subsection (g): Some commenters noted that the Division acknowledged their
concerns regarding the time necessary to order and complete diagnostic testing
by increasing the testing timeframe from seven to 10 days in the proposed
rule. Some of the commenters recommended the Division consider a longer period
of 14 days and one recommended 20 days.
Agency Response: The Division wishes to clarify that the rule provides
for 10 working days, which is equivalent to two full business weeks, for testing
to be performed. Changing the period to 14 calendar days from 10 working days
could shorten rather than lengthen the period for testing, for example when
there are intervening holidays. Based on comments received, a period of 10
working days appears to be sufficient time to order and complete diagnostic
testing.
Comment: Some commenters indicated that diagnostic testing under this provision
should adhere to the same preauthorization standards as in any other circumstance
to determine if the testing is clinically indicated and that the insurance
carrier will need to be notified of any testing recommendation to provide
the authorization.
Agency Response: The Division disagrees. It is necessary to eliminate the
preauthorization requirement for diagnostic testing required to define the
compensable injury. The treating doctor may require tests to confirm or rule
out suspected diagnoses. Denial of preauthorization for diagnostic testing
could prevent the treating doctor from defining the injury.
Comment: Some commenters expressed concern that doctors may include every
diagnosis they can think of because it may be needed later. The commenters
feel that this will lead insurance carriers to dispute more diagnoses on claims
that would not necessarily have had a dispute arise.
Agency Response: The Division reminds participants that the doctor will
need to confirm the injuries and diagnoses that are being defined. A suspected
injury or diagnosis cannot be included. The treating doctor shall list only
specific, confirmed injuries and diagnoses that are part of the compensable
injury. If the doctor does document confirmed injuries, the insurance carrier
should deny any that it feels are not related to the compensable injury so
that the dispute may be resolved earlier in the claim process.
Subsection (j): A commenter suggested the language in subsection (j) be
changed to state, "within 60 days of the date written notice of the injury
or diagnosis is received . . ." Another commenter suggested after "within
the later of 60 days of the date written notice of the injury" adding "or
the date the diagnosis is received."
Agency Response: The Division declines to make the suggested changes. It
is not necessarily notice of a specific diagnosis that triggers the 60-day
period. It is notice of an injury that triggers the 60-day period. The insurance
carrier shall respond to the treating doctor's report within 10 working days
of receipt of the treating doctor's report unless the 10 working days expires
prior to the end of the 60 days after receipt of the written notice of injury.
Comment: A commenter expressed concern that 60 days is too long a time
to make a determination on what is being accepted as the compensable injury
and questioned if this is in conflict with subsection (j)(1) and (2).
Agency Response: The Division believes there may have been some confusion
regarding the time period for an insurance carrier to deny injuries and diagnoses
on the treating doctor's report. It will only be in those cases when the examination
is requested very early in the claim and the 10 working day period expires
prior to the 60th day after the date written notice of the injury was received,
that the period is extended. The period for responding to the treating doctor's
report is extended to the 60th day so it will not interfere with the statutory
timeframe for investigating and accepting the compensability of the claim.
There is no conflict within subsection (j). The Division reads Labor Code §408.0042
and this rule in concert with §409.021. A key element of statutory construction
is that if various statutes can be read in harmony with each other so that
all provisions can be given effect then that is the interpretation that should
be utilized. That is what has been done in this situation. There is no conflict
between Labor Code §408.0042 and §409.021 and this rule and full
effect can be given to all. Additionally, the subsection indicates the insurance
carrier shall not begin denying medical payments on the basis of compensability
until it has given written notice that it is denying the compensability of
the diagnosis for which the treatment was rendered, in accordance with §124.3(e)
and Insurance Code §1305.153(e).
Subsection (j)(1): Some commenters questioned the purpose of subsection
(j)(1) and suggested deletion. They contend it is inconsistent with the changes
made to the statute by House Bill 7 and re-creates a "Downs"-like situation
(Continental Casualty Co. v. Downs, 81 S.W. 3d 803 (Tex. 2002)) as well as
a disincentive for the insurance carrier to use a tool created by the Legislature
for them. A commenter suggested that if it was the Division's concern that
subsection (j)(1) may be used to revive a waived injury, a wording change
that simply says, "the insurance carrier may not use this examination to circumvent
its responsibilities to dispute compensability under §409.021" should
be sufficient. A commenter noted the insurance carrier must be fairly informed
of the injury it is waiving into before it can be compelled to accept that
injury under the doctrine of waiver and suggested the rule has ignored the
'written notice' requirement for a more subjective 'reasonably discoverable'
standard. Another commenter stated that it was not the insurance carrier's
burden to deny non-discovered, non-reported injuries.
Agency Response: The Division has modified subsection (j)(1) to provide
that no injury or diagnosis, established under Labor Code §409.021, can
be taken away by a subsequent definition of the injury under this section.
The Division disagrees with the assessment that the rule is inconsistent with
changes made by House Bill 7 because Labor Code §409.021 must be read
in concert with new Labor Code §408.0042. Neither §408.0042 nor
this section creates a waiver. Although there is no waiver reference in §408.0042, §409.021,
which is applicable to §408.0042, states the insurance carrier has specific
responsibilities and deadlines with regard to liability for a compensable
injury. The treating doctor examination to define the compensable injury process
may not be used to avoid these responsibilities or correct an omission. The
Division is not attempting to expand on provisions spelled out in other rules;
rather it is merely giving full effect to the various provisions of the Act
and showing how other rules work in concert with this provision. The subsection
clarifies that the intent of the paragraph is to give full effect to both §§409.021
and 408.0042 and the results defined by the treating doctor examination cannot
diminish any injury established by a waiver determination. The Division concurs
that the insurance carrier must receive written notice of an injury to trigger
its duty to investigate the claim and a reasonable investigation would fairly
inform the insurance carrier of the injuries. The commenter is incorrect in
stating the insurance carrier has no duty to investigate the injury.
Comment: Some commenters disagreed with the use of the words "symptoms
and conditions" as these words do not qualify as injuries under the Act and
Labor Code §408.0042 addresses only "injuries and diagnoses." Some commenters
recommended the rule be confined to the scope of the statute and these terms
be removed.
Agency Response: The Division has removed the terms "symptoms and conditions"
from subsection (j)(1) but notes that symptoms and conditions are compensable
if they are related to the compensable injury.
Comment: Several commenters stated that subsection (j) implies that a causative
link between work and the injuries and diagnoses did not have to be made,
exposing insurance carriers to liability for every health condition ever suffered
by the injured employee. As a result, insurance carriers would be inclined
to generate blanket denials on every claim, which conflicts with the intent
of House Bill 7.
Agency Response: The Division clarifies that the purpose of subsection
(j)(1) is to clarify that the findings of a treating doctor examination do
not change compensability established as a result of waiver under Labor Code §409.021.
Subsection (j)(2): Several commenters expressed concern over the requirement
that insurance carriers not deny reimbursement for medical care on the basis
of compensability prior to filing a written denial of compensability. Their
concern was not only about making an insurance carrier liable for non-compensable
medical costs, but also that a doctor may increase the amount of treatment
provided during this "free" period when it is anticipated that the insurance
carrier will deny a condition. Several commenters suggested insurance carriers
be given at least 10 days from the date the doctor's report is received, to
evaluate the report, before the insurance carrier is required to pay for medical
treatment.
Agency Response: An insurance carrier has 10 working days to evaluate the
treating doctor's report before it must accept all the injuries or dispute
specific diagnoses. The insurance carrier must deny the compensability of
a diagnosis before it may deny reimbursement for treatment rendered for that
diagnosis on the basis that it is non-compensable. This is consistent with
existing rules and statute.
Subsection (k): A commenter recommends adding a requirement that the injured
employee has only 30 days after receiving the denial to request a benefit
review conference to ensure that disputes are brought early for resolution.
Agency Response: The Division believes it is unnecessary at this time to
address a timeframe for requesting a benefit review conference. The Division
also notes that the proposed rule did not propose a timeframe for this request
and it is unable to make this type of change in the adopted rule.
Comment: Some commenters recommended that the insurance carrier be allowed
to notify the treating doctor of any denials of diagnoses identified from
this examination by any means, such as by phone, and not provide written notice.
Agency Response: The Division disagrees. An insurance carrier must provide
the treating doctor with written notice when specific injuries or diagnoses,
identified in the "exam to define the compensable injury" report, have been
denied. The Division encourages written notice to be transmitted by facsimile
or electronic transmission to the treating doctor when the doctor has the
means to receive such transmissions.
Subsection (l): Several commenters requested clarification of the services/treatments
that require preauthorization under §§126.14 and 134.600. Specifically,
the commenters questioned whether all services listed in §134.600 require
preauthorization regardless of the treating doctor exam; and whether all other
services not subject to §134.600 require preauthorization under §126.14.
One commenter asked the Division to reconsider this concept as it may result
in significant costs associated with preauthorization.
Agency Response: For non-network claims, all the services listed in §134.600
must be preauthorized regardless of the results of a treating doctor examination.
In network claims, §134.600 is not applicable and each network will establish
its own list of services that require preauthorization. However, in both network
and non-network claims, preauthorization is not required for diagnostic tests
ordered by the treating doctor to establish a diagnosis under subsection (g).
Regardless of any network affiliation, all services and treatments related
to a denied injury or diagnosis identified in the treating doctor's examination
under §126.14 require preauthorization. These preauthorization requirements
are required by Labor Code §408.0042(d).
Comment: A commenter stated that it is not reasonable to provide a preauthorization
process for treatment of injuries denied by the insurance carrier since preauthorization
cannot comment on compensability.
Agency Response: The statutory provision that precipitated this rule requires
the insurance carrier to accept all diagnoses identified in the examination
as related to the compensable injury or to dispute the determination of a
specific diagnosis. It goes on to require preauthorization for treatment of
any diagnosis that was disputed to allow the possibility of care while dispute
resolution is in process. The rule has been written to reflect the statutory
language.
Subsection (m): A commenter suggested that the Division clarify that the
treating doctor cannot later dispute his own assessment.
Agency Response: The health care provider may only pursue an extent of
injury dispute under Labor Code §408.0042 or as a sub-claimant under
Labor Code §409.009. There is no provision that permits a treating doctor,
or a subsequent treating doctor, to change the contents of a previously filed
report, changing the definition of the compensable injury. However, in accordance
with §408.021, there can be no provision that keeps additional injuries
from being established as part of the compensable injury.
Comment: A commenter questioned why a provider should be allowed to request
a benefit review conference for an extent of injury dispute if the injured
employee is not pursuing and the provider has not incurred charges.
Agency Response: Labor Code §408.0042(d) specifically allows an affected
health care provider to file an extent of injury dispute if an insurance carrier
denies preauthorization because the treatment is for an injury unrelated to
the compensable injury. However, subsection (m)(1) has been changed to clarify
that a health care provider may not request a benefit review conference to
address an extent of injury dispute if the injured employee has already requested
a benefit review conference for this issue.
Comment: A few commenters suggested a health care provider may only request
a benefit review conference when the insurance carrier denies preauthorization
based on an extent of injury dispute. The commenters noted that a dispute
regarding medical necessity is subject to the provisions of §133.308
not Chapter 141.
Agency Response: The Division agrees that a health care provider may only
request a benefit review conference under Labor Code §408.0042(d) to
address an extent of injury denial. Questions related to medical necessity
are handled through medical dispute resolution.
Subsection (n): A number of commenters requested the Division add a provision
allowing an insurance carrier to contest extent of injury of an accepted condition
at a later time if newly discovered evidence was obtained. They suggested
the rule was too absolute in this area and the statute does not provide the
Division with the authority to limit the insurance carrier's ability to raise
an extent issue.
Agency Response: The Division clarifies that the insurance carrier may
reopen the issue of compensability for the claim as a whole as provided by
Labor Code §409.021, but not for extent of injury issues. Labor Code §408.0042
states treatment for injuries or diagnoses that have been accepted are not
subject to review for compensability but may be reviewed for medical necessity.
Allowing the insurance carrier to contest an injury after accepting that injury
or diagnosis would negate the intent of the provision to identify and resolve
disputes early in the claim.
Comment: A commenter stated that subsection (n) is not mandated by statute.
The commenter asserted that it must be made clear that while an insurance
carrier is liable for accrued medical benefits after the insurance carrier
has accepted some or all of the injuries or diagnoses in the treating doctor's
report, the insurance carrier may subsequently dispute those injuries and
not be liable for future treatment.
Agency Response: The Division disagrees as the subsection is mandated by
Labor Code §408.0042(e), which provides that any treatment for an injury
or diagnosis that is accepted by the insurance carrier may not be reviewed
for compensability, only for medical necessity. It is accepted that this also
allows review for compliance with fee guidelines. The purpose of this provision
is to give all participants the opportunity to establish the nature of the
injury and to resolve disputes over the nature of the injury early in the
claim. If the insurance carrier had the opportunity to subsequently dispute
accepted conditions, it would negate the purpose of the provision.
For, with changes: Employers Claims Adjustment Services, Inc.; Texas Association
of School Boards; Lockheed Martin Aeronautics Co.; Hammerman and Gainer; Flahive,
Ogden and Latson; Office of Injured Employee Counsel; American Insurance Association;
Texas Mutual Insurance Co.; The Boeing Co.; Insurance Council of Texas; Medical
Equation, Inc.; Property Casualty Insurers of America; Association of Fire
and Casualty Insurers of Texas. Neither for or Against: Texas Medical Association;
TIRR Systems; Fair Isaac Corp.; Healthsouth.
The new section is adopted under the Labor Code §§408.0042,
402.00111, and 402.061. Section 408.0042 provides for a medical examination
by the treating doctor to define the compensable injury. Section 402.00111
provides that the Commissioner of Workers' Compensation shall exercise all
executive authority, including rulemaking authority, under the Labor Code
and other laws of this state. Section 402.061 authorizes the Commissioner
to adopt rules necessary to administer the Act.
§126.14.Treating Doctor Examination to Define the Compensable Injury.
(a)
On request of the insurance carrier, an injured employee
is required to submit to a single examination per workers' compensation claim
for the purpose of defining the compensable injury. The examination:
(1)
shall not be requested prior to the eighth day after the
date of injury, and
(2)
shall be scheduled to occur no earlier than 15 days and
no later than 30 days from the date the notice of examination is sent to the
injured employee.
(b)
The insurance carrier shall schedule the examination with
the injured employee's treating doctor. If a request to change treating doctor
has been filed by the injured employee, the insurance carrier shall not schedule
this examination until after the treating doctor change has been processed.
(1)
An insurance carrier that schedules the examination with
a doctor other than the injured employee's treating doctor shall be liable
for reimbursement of the examination and testing.
(2)
The examination findings may only be used to define the
compensable injury when provided by the treating doctor of record at the time
the notice of examination was sent to the injured employee. The report by
a doctor other than the treating doctor of record at the time the notice of
examination was sent shall not be used for the purpose of defining the compensable
injury.
(c)
The insurance carrier shall send the injured employee a
written notice of examination. A copy of a notice of examination shall be
sent to the injured employee's representative (if any). The notice of examination,
at a minimum, shall include:
(1)
general information identifying the claim;
(2)
the name of the treating doctor;
(3)
the date, time, and the location of the scheduled examination
with the treating doctor named; and
(4)
the following statements in a bold font equal to the font
size in the main body of the notice:
(A)
The insurance carrier requests that you, the injured employee,
attend a single examination for this workers' compensation claim for the sole
purpose of defining the injuries and diagnoses that resulted from the work-related
incident or activities. Section 408.0042 of the Labor Code requires you to
attend.
(B)
If the doctor named in this notice is not your treating
doctor, immediately contact the insurance carrier (add name and phone number
of contact person) or the Texas Department of Insurance, Division of Workers'
Compensation. You are not required to attend this examination with a doctor
other than your treating doctor, unless the doctor was your treating doctor
on the day the notice of examination was sent to you. Once you receive notice
of this examination, you should not request to change treating doctor until
after the examination has been conducted.
(C)
You are responsible for contacting your doctor to reschedule
the examination if you have a conflict with the date and time that has been
scheduled for you. The rescheduled examination shall take place within seven
days of the originally scheduled date or the doctor's first available appointment
date. If you fail to attend the examination at the time scheduled or rescheduled
without good cause, an administrative penalty may be assessed.
(d)
If a scheduling conflict exists, the injured employee shall
immediately contact the treating doctor to reschedule the examination. The
examination must be rescheduled to take place within seven working days of
the original examination or the doctor's first available appointment date.
(e)
An injured employee who fails or refuses to appear at the
time scheduled for an examination may be assessed an administrative penalty
unless good cause exists for such failure. An injured employee who fails to
submit to an examination at the insurance carrier's request does not commit
an administrative violation if the doctor named on the notice of examination
is not the injured employee's treating doctor.
(f)
The treating doctor shall submit a narrative report after
the conclusion of the examination. The report shall contain, at a minimum:
(1)
general information that identifies the claim;
(2)
a description of the mechanism of injury;
(3)
a list of all specific, confirmed diagnoses, including
ICD-9 codes and the narrative description, that the doctor considers to be
related to the compensable injury. The explanation shall describe how the
mechanism of injury is a cause of each diagnosis. If the doctor identifies
an aggravation of any pre-existing condition, including an ordinary disease
of life, the explanation shall describe how the mechanism of injury caused
a worsening, acceleration, or exacerbation of that pre-existing condition;
and
(4)
a list of each diagnostic test performed, if required to
establish a diagnosis, including an explanation of why it was appropriate
to perform each test to define the compensable injury.
(g)
Any diagnostic testing necessary to define the compensable
injury shall be performed no later than 10 working days after the examination
and is not subject to the preauthorization requirements of either §134.600
of this title (relating to Preauthorization, Concurrent Review, and Voluntary
Certification of Health Care) or a worker's compensation health care network
under Insurance Code Chapter 1305 or Chapter 10 of this title (relating to
Workers' Compensation Health Care Networks).
(h)
The treating doctor shall submit a copy of the narrative
report to the insurance carrier, the injured employee, and the injured employee's
representative (if any) no later than 10 days after the conclusion of the
examination. If diagnostic testing is required to define the compensable injury,
the filing of the report is extended to seven days after the conclusion of
the testing.
(i)
A treating doctor may bill, and the insurance carrier shall
reimburse, for an examination performed under this section.
(1)
Treating doctors shall bill for the examination using the
Healthcare Common Procedure Coding System (HCPCS) Level I code, Evaluation
and Management Section, for work-related or medical disability evaluation
services performed by a treating physician. A Division modifier of "TX" shall
be added to the Level I code.
(2)
Reimbursement for the examination shall be $350. Reimbursement
for the report is included in the examination fee. Doctors are not required
to submit a copy of the report with the bill if the report was previously
provided to the insurance carrier.
(3)
Testing necessary to define the compensable injury shall
be billed using the appropriate billing codes and reimbursed in addition to
the examination fee. Reimbursement for testing shall not be retrospectively
reviewed on the basis of compensability if the doctor has documented a rationale
for why the testing was necessary for defining the compensable injury.
(j)
An insurance carrier shall review the injuries and diagnoses
identified in the treating doctor's report. If a specific injury or diagnosis
is not accepted as part of the compensable injury, the insurance carrier shall
file a denial in accordance with §124.2 of this title (relating to Carrier
Reporting and Notification Requirements) within the later of 60 days after
the date written notice of the injury is received or within 10 working days
of receipt of the treating doctor's report. In addition to the distribution
requirements outlined in §124.2 of this title, a copy of the written
denial shall be sent to the treating doctor by fax or electronic transmission
unless the recipient does not have the means to receive such transmission
in which case the notice shall be personally delivered or sent by mail.
(1)
A compensable injury established as a result of a waiver
determination under Labor Code §409.021, is not affected by a definition
of the compensable injury under §408.0042.
(2)
The insurance carrier shall not deny reimbursement for
treatment of any injury or diagnosis listed in the treating doctor's report
on the basis of compensability or relatedness prior to filing a denial as
required by §124.2 of this title.
(k)
The injured employee may initiate a request for a benefit
review conference in accordance with Labor Code §410.023 and §141.1
of this title (relating to Requesting and Setting a Benefit Review Conference)
upon receiving a denial regarding specific injuries or diagnoses.
(l)
If the insurance carrier denies an injury or diagnosis
identified in this examination, all treatment for that injury or diagnosis
must be preauthorized prior to treatment occurring. For the treating doctor,
the insurance carrier's denial is effective on the date the written notice
of denial is received by the doctor. The preauthorization requirement continues
until the injury or diagnosis is determined to be part of the compensable
injury through dispute resolution or agreement of the parties.
(m)
A health care provider may request a benefit review conference,
in accordance with §141.1 of this title, to address an extent of injury
question if a request for preauthorization has been denied for treatment of
an injury or diagnosis that was denied as unrelated to the compensable injury
under this section; unless:
(1)
the injured employee has already requested a benefit review
conference to pursue the extent of injury denial, or
(2)
an agreement, filed in accordance with §147.4 of this
title (relating to Filing Agreements with the Commission, Effective Dates)
has been entered into by the insurance carrier and injured employee establishing
the insurance carrier's liability on the disputed issues.
(n)
Once the treating doctor has defined the compensable injury
and the insurance carrier has accepted injuries or diagnoses as related, the
insurance carrier shall not review treatment of the accepted injuries and
diagnoses for compensability.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 19, 2006.
TRD-200603369
Norma Garcia
General Counsel
Texas Department of Insurance, Division of Workers' Compensation
Effective date: July 9, 2006
Proposal publication date: February 3, 2006
For further information, please call: (512) 804-4288