The Texas Workers' Compensation Commission (the Commission) adopts new §133.1, concerning definitions applicable to Chapter 133; §§133.304-133.305, concerning payment and denial of payment for medical treatment(s) and/or service(s); and §133.306, concerning interlocutory orders for medical benefits; amendments to §§133.300-133.303, concerning receipt, review, and auditing of medical bills; with changes to the proposed text as published in the November 19, 1999, issue of the Texas Register (24 TexReg 10281) and adopts simultaneous repeal of §133.1, concerning information required in communications, §133.304, concerning notice of medical payment dispute, and §133.305, concerning request for medical dispute resolution.

New §133.4 was proposed in the same preamble with these rules, but is adopted in a separate preamble published in this issue of the Texas Register .

As required by the Government Code, §2001.033(1), the Commission's reasoned justification for this rule is set out in this order, which includes the preamble, which in turn includes the rules. This preamble contains a summary of the factual basis for the rule, a summary of comments received from interested parties, names of those groups and associations who commented, whether they supported or opposed adoption of the rules, and the reasons the Commission disagrees with some of the comments and recommendations.

Changes were made to the proposed rules in response to public comment received in writing and at a public hearing held on December 1, 1999; these changes are described in the summary of comments and responses section of this preamble. Other changes were made for consistency or to correct typographical or grammatical errors and to address issues the Commission identified during its reexamination of the rules while considering the input from the public. In particular, §§133.1, 133.301, 133.304, and 133.305 were changed. All rules in this adoption are corrected to accurately cite references to the Commission's preauthorization rule.

The Commission adopts these new rules and amendments to reinforce long-standing policies and to address problems with the previous rules, which the Claims Service Task Force (CSTF), other system participants, and Commission staff identified (the CSTF is a group of representatives from throughout the workers' compensation system, whom the Commission appointed to serve as a sounding board for ideas regarding rule development). Other changes include formatting and consistency issues designed to simplify and shorten rule construction. Additionally, the structure of the rules is changed to eliminate or significantly reduce ambiguity in the rules. The changes are designed to more clearly lay out expectations, so that all system participants will understand the requirements the Texas Labor Code and Commission rules place on them. These changes are expected to improve benefit delivery, increase and expedite communication among the parties, reduce the number of disputes and the time required to process them, simplify and accelerate medical dispute resolution, reduce violations, and strengthen the Commission's ability to hold violators accountable for noncompliance.

The effective date for the amended and new rules is set out in each rule to allow sufficient time for system participants to make necessary adjustments to their business practices and to allow the Commission sufficient time to implement the necessary forms and procedures.

§133.1:

Previous §133.1 became redundant, as the information contained in previous §133.1 (relating to Information Required in Communications) is now provided in §102.8, adopted in August, 1999, and in the instructions for all required reports and forms; therefore, this rule is no longer needed.

New §133.1 provides a much needed definition section for terms used throughout Chapter 133. These terms were not previously defined. Adding a section of definitions clarifies the meaning of the rules and reduces disputes, since it increases the ability of the parties to understand and comply with the rules.

Amended §133.300 is the first of several rules that regulate the insurance carrier's processing of a medical bill. It is re-titled Insurance Carrier Receipt of Medical Bills from Health Care Providers. The adopted amendments provide specific instruction on the methodology a carrier must use when it receives a bill from a health care provider. Specifically, the insurance carrier must review a medical bill for completeness and complete or return incomplete bills within 7 days of receipt. When an insurance carrier returns a bill because it is incomplete, the rule requires that the insurance carrier include a letter that explains all of the specific reasons for the return, and that the insurance carrier include all of these reasons the first time it returns the bill. This should reduce the time for payment of medical bills in many instances, reduce the number of medical disputes and make the medical bill payment system more efficient.

Amended §133.301 defines the insurance carrier's responsibility when reviewing a medical bill for reimbursement, and is re-titled Retrospective Review of Medical Bills. The adopted amendments provide specific instruction on the methodology a carrier must use when it reviews a medical bill and determines whether the bill is eligible for payment. The rule provides a partial list of the reasons for retrospective review, and instructs insurance carriers and their agents on the procedure for changing a health care provider's billing codes. It also specifies the circumstances in which an insurance carrier may request additional documentation on a bill, and the procedures for doing so, as well as the time frames for the health care provider's response to the request for additional documentation. This should reduce the time for payment of medical bills in many instances.

Amended §133.302 sets out the procedure for an insurance carrier to use when it conducts an onsite audit of a health care provider, and is re-titled Preparation for an Onsite Audit. The adopted amendments provide specific instruction on the methodology a carrier must use when it sets up an onsite audit with a health care provider. The rule sets out the time frames and procedures for requesting an onsite audit, and specifies the components of the notice the insurance carrier must provide to the health care provider of its intent to perform an onsite audit.

Amended §133.303 defines the procedure an insurance carrier must use for conducting an onsite audit of a health care provider, and is re-titled Onsite Audits. The adopted amendments provide specific instructions for the health care provider and the insurance carrier for the provision of records and a liaison for each party, and specify the respective responsibilities of each party during and after the audit.

§133.304:

The repeal of previous §133.304 is adopted because the previous rule did not adequately address an insurance carrier's payment and dispute of a medical bill, and did not clearly lay out the steps a health care provider may take if it does not agree with the payment or dispute the insurance carrier issued. The previous rule did not adequately address the issuing of a TWCC-62, Notice of Medical Payment Dispute, or an explanation of benefits (EOB) to the health care provider and use of the Commission payment exception codes. Therefore, this rule was repealed and a new §133.304 adopted.

New §133.304 sets out the methodology and procedure for the payment and denial of medical bills. The adopted new §133.304 consolidates medical bill processing and audit concepts previously included in §§133.300, 133.301, and 133.304. The adopted new rule provides specific instructions for the methodology an insurance carrier must follow when it issues a payment, reduces payment, or denies payment for a medical bill. The new rule specifies the type of health care provider who may provide a peer review when the insurance carrier uses the review to reduce or deny payment on a medical bill, and requires that the insurance carrier provide a copy of the report and identify the reviewer and his or her credentials when using the review to reduce or deny payment on a medical bill. The rule introduces the concept of reconsideration and sets out the procedure for a health care provider to request and an insurance carrier to respond to a request for reconsideration, and sets out the conditions for requesting medical dispute resolution. Finally, the rule sets out the conditions and procedures for an insurance carrier to request the refund of an overpayment, and requires that insurance carriers and health care providers pay interest on late payments. This should reduce the time for payment of medical bills in many instances, reduce the number of medical disputes and make the medical bill payment system more efficient.

§133.305:

Previous §133.305 is repealed because the previous rule did not adequately address issues such as attempting to resolve a dispute before requesting resolution through the Commission, the information needed for a successful review of medical disputes, and the process an insurance carrier uses to dispute a health care provider's refusal to refund possible overpayments.

New §133.305 provides definitions of terms associated with the medical dispute resolution process. These definitions clarify key terms that impact the medical dispute resolution process. The rule identifies the parties to each type of medical dispute, which allows a better understanding of which individuals and/or entities may participate in each type of medical dispute. The rule also specifies the procedure and time frames for requesting reconsideration, and simplifies the process of requesting medical dispute resolution, and sets out the form and manner for requesting and responding to medical dispute resolution, including the components a requestor and respondent must include in order to submit a complete request or response. The rule simplifies and expedites the medical dispute resolution process, shortening the amount of time required to resolve a dispute by providing a new process for submitting the request, shortening the amount of time available for responding to the request. The rule specifies that the Division will not consider an untimely response, and sets out the conditions in which the Division will dismiss a request for medical dispute resolution. Finally, the rule allows for an informal resolution conference and sets out the process for appealing the Division's decision. These provisions should decrease the amount of time and paperwork in the dispute resolution process.

New §133.306 allows the executive director to delegate the authority to issue interlocutory orders for the payment of medical benefits to Medical Review Division staff, and provides for the entering of interlocutory orders at the conclusion of the medical dispute resolution and informal resolution conference process when: the Medical Review Division determines that an insurance carrier has disputed medical benefits as the result of a compensability or extent of injury dispute in the manner prescribed by §124.2 (relating to Carrier Reporting and Notification Requirements) and the Medical Review Division determines that accrued and/or future medical benefits are medically necessary and constitute essential medical treatment and/or services, which, absent the interlocutory order, would be unavailable to the injured employee. Essential medical treatment is medical treatment that an injured employee must receive within a short time frame in order to prevent an emergent situation.

PUBLIC COMMENTS AND RESPONSES

The following groups submitted comments on the proposed new rules: American Insurance Association; Texas Worker's Compensation Insurance Fund; Concentra Health Services; Wilson, Grosenheider, Moore & Jacobs; Texas Association of School Boards; Liberty Mutual Insurance Company; Alliance of American Insurers; and D. C. Health Center. Several individuals also submitted comments.

All commenters indicated opposition or concern about various aspects of the proposed amendments and made recommendations for changes before adoption. Though these commentors indicated opposition to and/or concern about specific portions of the proposed amendments, none suggested that the rules should not be adopted. Summaries of the comments and Commission responses follow.

§133.1(a)(3)(C)

COMMENT: Commenter requested clarification regarding the phrase "unless the bill is a request for reimbursement by a person other than a health care provider", and asked who the person "other than the health care provider" is.

RESPONSE: Subsection (a)(3)(C) addresses any situation in which an entity other than a health care provider might submit a medical bill. Examples of "a person other than a health care provider" may include an injured employee who has paid out-of-pocket medical expenses related to a compensable work-related injury or illness and an employer who seeks reimbursement for a bill it paid.

§133.1(a)(3)(E)

COMMENT: Commenter stated that submission of medical records with all workers' compensation bills has its benefits but would result in significant increased costs to the provider, including dictation and transcription; the commenter recommended that the medical fee schedule for office visits be adjusted accordingly to compensate for the subsequent increase in costs.

RESPONSE: The Commission disagrees. The rule specifies legible documentation; it does not require that the progress notes be dictated and typed. Because getting the necessary information to the insurance carrier with the initial submission of a bill will expedite prompt payment, it is expected that most increased costs to health care providers will be offset by decreased costs of delayed payments, collecting late payments, and dispute resolution.

Finally, the definition of a complete medical bill is the result of a task force comprised of health care providers, insurance carriers, and Commission staff, which worked for more than two years to identify paperwork problems associated with medical benefits under the workers' compensation system. This task force agreed that implementing this definition would enable insurance carriers to more efficiently audit medical bills, enable health care providers to more easily collect appropriate and timely payment for bills, and greatly reduce the instances in which insurance carriers require additional documentation.

However, requiring this documentation for all office visits is unnecessary. Therefore, the definition of "complete medical bill" was changed to exclude documentation for the two lowest level office visits.

COMMENT: Commenter suggested adding the requirement for documentation such as itemization for hospital bills to the definition of a complete medical bill.

RESPONSE: The Commission agrees. Subsection (a)(3) was changed to include itemization of hospital bills because, while this is currently standard practice, the criticality of the information to bill auditors makes it prudent to add the requirement to the definition of a complete medical bill in order to ensure the continued inclusion of itemization with hospital bills.

COMMENT: Commenter requested clarification as to whether the rule covers single and interdisciplinary programs such as work conditioning, work hardening, and chronic pain management, stating that these types of programs do not appear to meet the current definition of physical medicine care or therapy in the fee guideline ground rules. Commenter recommended that these types of programs should be expressly listed in the rule.

RESPONSE: The Commission agrees. Work conditioning, work hardening, and chronic pain management services are intended to be tailored to fit individual injured employees' specific medical conditions, which makes the services so variable as to require documentation of the individualized program in order to support the billing. Subsection (a)(3) was changed to include single and interdisciplinary programs.

COMMENT: Commenter stated that providing this definition for a "complete medical bill" helps clarify the documentation health care providers must send to insurance carriers. However, commenter recommends that the Commission make it clear whether a health care provider is required to submit any documentation with a bill if the service is not covered by subsection (a)(3)(E). For example, if a provider bills for a surgical service with a maximum allowable reimbursement (MAR) of less than $500.

RESPONSE: The Commission requires that health care providers include documentation with bills as specified by rule, such as subsection (a)(3)(E) and fee guidelines (for example, when billing for a CPT code with an MAR of "DOP"). The Commission does not require health care providers to include documentation with bills unless specified by rule. The Commission does not presently require documentation for surgical services with an MAR below $500. If the Commission does not require documentation, insurance carriers requesting additional documentation are required to follow §133.301.

COMMENT: Commenter recommended that this be changed to read "for each surgical service with the fee established in the current Commission fee guideline of greater than $500 or DOP (documentation of procedure)".

RESPONSE: The Commission disagrees. If no individual surgical service reaches the $500 amount, no documentation would be required. However, in order to clarify the intent, subsection (a)(3) was changed to require documentation for surgical service(s) rendered on the same date of service for which the total of the fees established in the current Commission fee guideline are greater than $500 or is listed as DOP (documentation of procedure). While it is currently standard practice to enclose the operative report with all bills for surgical services, this amendment will ensure that bill auditors continue to receive the information they require to audit the bill accurately.

§133.1(a)(6)

In reviewing the rules and comments, staff realized that the definition for an explanation of benefits (EOB) should include a phrase to require insurance carriers to specify all reasons for which they are reducing or denying payment for a medical bill. Some insurance carriers erroneously believe that they are restricted in the number of payment exception codes they can use on an individual EOB. Subsection (a)(6) was changed to clarify this point.

§133.1(a)(7)(A)

COMMENT: Commenter recommended deleting the phrase "including severe pain" from the definition of "emergency", and/or adding language to clarify that severe pain is only emergent until there is determination that the source of the pain will not place the patient in jeopardy. Commenter also recommended that the definition address solid, objective findings such as "significant neurological deficit (i.e. bowel and bladder dysfunction)" as in the Spine Treatment Guideline rather than subjective examples of emergent spine conditions. Finally, the commenter asks for clarification of the phrase "serious jeopardy".

RESPONSE: The Commission disagrees. The definition of emergency was derived from a synthesis of definitions used by national and statewide regulatory agencies, particularly Medicare. The definition in Chapter 133 cannot be as specific as the definition in a particular treatment guideline or other rule that relates to specific diagnoses, as Chapter 133 covers all medical conditions, not specific body areas or diagnoses; a list of solid, objective findings that would cover all medical conditions would be prohibitively long, in order not to exclude any potentially dangerous conditions that would place injured employees at risk.

Absent a specific definition, words and phrases are to be read in context and construed according to the rules of grammar and common usage, in accordance with §311.011 of the Texas Government Code. Words and phrases that have acquired a technical or particular meaning are to be construed accordingly. Merriam Webster's Collegiate Dictionary, 10th Edition defines "serious" as "having important or dangerous possible consequences"; and "jeopardy" as "exposure to or imminence of death, loss, or injury". Therefore, "serious jeopardy" can be defined as "having important or dangerous possible exposure to or imminence of death, loss, or injury".

§133.1(a)(8)

COMMENT: Commenter agrees that it is important to keep the standards in §413.011 in mind when developing reimbursement for services for which the Commission has not established an MAR.

RESPONSE: The Commission agrees. Also, in reviewing the rules, staff realized that the first line of subsection (a)(8)(A) refers to both subparagraphs (A) and (B), so should be placed in the opening paragraph for subsection (a)(8), and that a negotiated contract price is also fair and reasonable reimbursement. Subsection (a)(8) was changed to reflect these changes.

§133.1(a)(9)

COMMENT: Commenter recommended that the definition of "health care provider" be amended to read "...under the on-site direction or on-site supervision of a doctor...".

RESPONSE: The Commission disagrees. This definition is consistent with the definition in §401.011 of the Texas Labor Code. The Medical Fee Guideline specifies that the supervisor must be onsite and in visual and verbal contact with the nonlicensed individual at regular intervals throughout the treatment.

COMMENT: Commenter requested clarification of the word "facility", and for clarification of the requirements this subsection places on suppliers such as TENS (transcutaneous electro-neuro stimulators) supply companies, and orthotics and prosthetics companies.

RESPONSE: §401.011(20) of the Texas Labor Code defines "health care facility" as "a hospital, emergency clinic, outpatient clinic, or other facility providing health care." The definition of health care in §401.011(20) includes TENS supply companies, and orthotics and prosthetics companies; they are, therefore, subject to this rule.

§133.1(a)(14)

COMMENT: Commenter recommended that the definition of a required medical report distinguish between Commission required reports and documentation needed to support services.

RESPONSE: The Commission agrees. Subsection (a)(14) was changed to delete written documentation from the definition of required medical report.

§133.1(a)(15)

COMMENT: Commenter recommended that the definition of retrospective review be amended to include review for fair and reasonable reimbursement, relatedness to the compensable injury, unbundling, and documentation.

RESPONSE: The Commission disagrees. Section 133.301, Retrospective Review of Medical Bills, clarifies and details these areas, and is not limited to the items listed. The definition in §133.1(15) is broad enough to include these concepts (with the exception of "documentation," which is not retrospective, and has been deleted from subsection (a)(14)), and a cross-reference to §133.301 is included.

§133.1(a)(16)

COMMENT: Commenter recommended using other, or portions of other, definitions to define "unbundling" and/or "fragmented". The commenter suggested the following other established definitions:

American Academy for Orthopaedic Surgeon's definition-"when the charge for a specific procedure remains the same, but one or more components of the procedure are separated from the global service package and given a separate, additional fee"

AMA definition of unbundling-"reporting separate codes when one comprehensive code includes all [or some] related services"

AMA definition of fragmented-"fragmenting one service into component parts and coding each component part as if it were a separate service"

RESPONSE: The Commission disagrees. The definition of "unbundling" and "upcoding" in the rule is derived from the American Medical Association; "fragmenting" is so similar to "unbundling" as to be synonymous, so does not require a separate definition. Since many of the coding guidelines the Commission references are derived from the American Medical Association, using their definition of "unbundling" and "upcoding" allows for consistency among the Commission's billing rules.

COMMENT: Commenter recommended adding a definition for "timely medical bill" to the definition list, noting that, according to the Texas Labor Code, untimely bills could result in violations.

RESPONSE: The Commission disagrees. Section 134.801 (relating to Submitting Medical Bills for Payment), which is adopted concurrently with these rules, addresses the timely submission of medical bills, which is now governed by the Texas Civil Practice and Remedies Code (adopted by HB 213). Timely billing is not addressed in Chapter 133, so §133.1 is not an appropriate place for the definition of timely billing.

§133.300(c)

COMMENT: Commenter opposed requiring the insurance carrier to call health care providers that submit medical bills from which information is missing.

RESPONSE: The Commission agrees. Subsection (c) was changed to ameliorate this requirement. Also, upon review of the rule, staff realize that subsection (c) should make exception for duplicate bills. Subsection (c)(1) was changed to allow for the return of duplicate bills.

Previous §133.300(h)

COMMENT: Commenter recommended reinserting subsection (h) from the previous rule, and adding provisions requiring interest on late payments, presumption of medical necessity for bills for which an insurance carrier fails to pay 50% of the amount billed within 45 days after the receipt of the completed bill, that the Medical Review Division will order payment of charges and interest of those services presumed reasonable and necessary, and that the Medical Review Division will issue the order for payment and interest within 45 days of receipt of the request from the health care provider.

RESPONSE: The Commission disagrees. The time frames for paying bills are addressed in §§133.301-133.304; therefore, retaining subsection (h) would be redundant. Further, an insurance carrier that does not pay or deny medical bills timely is out of compliance with these rules, which is an issue for the Division of Compliance & Practices to review. The Commission will not deem that services are medically reasonable and necessary based solely on the insurance carrier's failure to process a bill timely. The Medical Review Division does not have the authority to order payment for medical bills without review of the actual medical necessity of the services; the Division will issue an order for payment and interest only as appropriate when a party requests medical dispute resolution. Interest is due on late payment of medical bills as directed in §134.803 of this title (relating to Calculating Interest for late Payment on Medical Bills and Refunds).

§133.301

COMMENT: Commenter strongly agreed with all sections in this rule.

RESPONSE: The Commission agrees.

§133.301(a)

COMMENT: Commentors believed that this subsection limits an insurance carrier's ability to retrospectively review charges for treatment(s) and/or service(s) for which a health care provider sought and an insurance carrier granted preauthorization, according to Chapter 134 of the Commission rules.

One of the commentors noted that Chapter 134 requires the insurance carrier to pay reasonable and necessary medical costs relating to health care treatments and services listed in the preauthorization rule.

One of the commentors used the example of hospital stays, chiropractic care, and physical therapy, noting that , under current rules, a health care provider must request preauthorization for all non-emergency hospital stays, and for all physical and occupational therapy after eight weeks of treatment. The commenter stated that the subsection will limit the insurance carrier's ability to retrospectively review a hospital stay for the necessity of the length of stay and the extent of exercises during physical or occupational therapy.

RESPONSE: The Commission disagrees. This subsection provides for the retrospective review of all complete medical bills for compliance with the Texas Labor Code, Commission fee and treatment guidelines, and other Commission rules. The subsection emphasizes, however, that the insurance carrier's prospective review of medical necessity and reasonableness of treatment(s) and/or service(s) through the preauthorization process establishes the medical necessity and reasonableness of the treatment, and the insurance carrier is not allowed to reconsider this issue retrospectively. This subsection does not prohibit insurance carriers from reviewing any medical bill for appropriate levels of payment.

"Reasonable and necessary medical costs," read in the full context of the preauthorization rule, means that the insurance carrier is liable for remitting a reasonable reimbursement for the treatment(s) and/or service(s) it has already (prospectively) determined to be medically reasonable and necessary.

Under the current rules, the length of a hospital stay is not a preauthorization item. Therefore, when an insurance carrier reviews a preauthorization request for hospitalization, the insurance carrier considers only the medical necessity of the hospitalization, not the length of stay. The medical necessity of the length of the hospital stay is a matter for retrospective review.

Similarly, an insurance carrier's review of a preauthorization request for physical or occupational therapy considers the medical necessity of the therapy. The insurance carrier retains the right to retrospectively review the therapy for compliance with Commission fee and treatment guidelines. Under the current rules, chiropractic care does not require preauthorization.

COMMENT: Commenter requested clarification of the intent of the language in §133.301(a)(6), and opposed the language if it is intended to restrict retrospective review.

RESPONSE: The Commission disagrees. As with §133.1(a)(3), the language in this subsection is the result of a task force comprised of health care providers, insurance carriers, and Commission staff, which worked for more than two years to identify paperwork problems associated with medical benefits under the workers' compensation system. This task force agreed that implementing the definition of a complete medical bill and this subsection would enable insurance carriers to more efficiently audit medical bills, enable health care providers to more easily collect timely payment for bills, and greatly reduce the instances in which insurance carriers require additional documentation.

§133.301(b)

COMMENT: Commenter disagreed with this item, and recommended requiring the insurance carrier to pay for the services supported by documentation at the time of the initial bill and then explain to the health care provider how it determined reimbursement, according to what is medically indicated or supported by documentation.

The commenter also expressed concern that improper coding is a major factor in health care provider fraud and suggested that the Commission reveal its ongoing health care provider billing and coding fraud investigations.

RESPONSE: The Commission disagrees. If a health care provider's documentation does not support the type or level of service billed, the insurance carrier may deny payment for the bill. The health care provider may then request reconsideration of the insurance carrier's denial, and provide documentation that supports the billing. If the parties do not agree on the reimbursement after reconsideration, they may request medical dispute resolution. Subsection (b) allows a quick-fix process that an insurance carrier and health care provider may agree to use. Further, §133.1 defines a complete medical bill, and specifies the documentation a health care provider must submit and an insurance carrier needs for review.

The Commission has an active fraud investigation program that specifically works to reduce health care provider billing and coding fraud; however, the list of health care providers who are under investigation is confidential under §402.092 of the Texas Labor Code.

§133.301(c)

COMMENT: Commentors stated that this subsection limits the insurance carriers' ability to attain necessary documentation by restricting such a request to very few instances. One of the commentors recommended adding a fourth item to the subsection to allow insurance carriers to request documentation that is required to determine reasonableness, necessity, and relationship to the compensable injury. One of the commentors expressed concern that insurance carriers will be forced to pay for treatment that is not medically reasonable and necessary.

One of the commentors also asked for clarification of instances when an employee seeks initial treatment at an emergency room, and the insurance carrier needs emergency room records to establish compensability of the treatment.

RESPONSE: The Commission disagrees. The definition of a complete bill in §133.1 should greatly reduce the problem of insufficient documentation, and therefore the instances in which an insurance carrier will need additional documentation should be few. This definition should also ensure that insurance carriers receive sufficient information to determine medical reasonableness and necessity, compensability, and relatedness with little or no need for additional documentation. The interconnection of the definition of a complete medical bill with this subsection is the result of a task force comprised of health care providers, insurance carriers, and Commission staff, which worked for more than two years to identify paperwork problems associated with medical benefits under the workers' compensation system. This task force agreed that implementing this definition and this subsection would enable insurance carriers to more efficiently audit medical bills, enable health care providers to more easily collect appropriate and timely payment for bills, and greatly reduce the instance in which insurance carriers require additional documentation.

Subsection (c)(3) includes the circumstance in which the injured employee has not chosen a treating doctor, which includes instances in which an injured employee seeks initial treatment in an emergency room. This is one of the occasions when an insurance carrier may request additional documentation. Although this commenter addresses only initial treatment in an emergency room, staff realized that injured employees seek emergency treatment in other situations as well. A fourth circumstance has been added to include instances when injured employees seek emergency treatment after they have chosen a treating doctor.

§133.301(d)

COMMENT: Commenter disagreed with the requirement that the insurance carrier include a copy of the health care provider's bill when requesting additional documentation, stating that it creates unnecessary paperwork at a time when all parties are striving to reduce paperwork. Commenter also stated that health care providers should have some responsibility for accomplishing the goals set forth.

Other commentors objected to the seven-day time frame for requesting additional documentation, stating that it effectively reduces the insurance carrier's time frame for audit from 45 days to seven days.

RESPONSE: The Commission disagrees in part. Section 133.1 provides the definition of a complete medical bill, which should greatly reduce the instances in which an insurance carrier needs additional documentation; therefore, sending a copy of the bill with a request for additional documentation will not undermine the goals of paper reduction. It may be very difficult for a health care provider to identify the bill for which an insurance carrier is requesting additional documentation without a copy of the bill. Including a copy of the bill will decrease the possibility of miscommunication as to the specific bill for which the insurance carrier is requesting additional documentation, thus reducing delays in processing the bill. Further, the rule allows this transaction to take place electronically, which does not require a paper exchange. Subsection (d)(4) was changed to include telephone calls as a means for making the request, specifying that the telephone call must be documented.

The seven-day time frame for requesting documentation does not reduce the time frame for audit to seven days: Section 133.300 states that insurance carriers must, upon receipt of a bill, review the bill for completeness, according to the definition of a complete bill in §133.1. If the bill is complete, the time allowed for the insurance carrier to process the bill continues to run.

The Commission agrees that seven days may not allow enough time for an insurance carrier to determine that it requires additional documentation; therefore, subsection (d)(5) was changed to increase the time frame for requesting additional documentation to 14 days, consistent with the time frame for a health care provider to respond to the request.

§133.301(c)-(g)

COMMENT: Commenter requested clarification of subsections (c)-(g), specifically whether they apply to an incomplete medical bill that does not meet the requirements of §133.1(3).

RESPONSE: Subsections (c)-(g) do not apply to an incomplete medical bill. Section 133.300 states that insurance carriers must, upon receipt of a bill, review the bill for completeness, according to the definition of a complete bill in §133.1. Once the insurance carrier determines that the bill is complete, the carrier may continue its review of the bill.

If the medical bill is not complete as defined by §133.1, §133.300 instructs the insurance carrier on its course of action, and if the bill remains incomplete, instructs the insurance carrier to return the bill to the sender within seven days of its receipt. A request for additional documentation will, therefore, not occur if a bill is incomplete.

§133.301(e)

COMMENT: Commenter stated that the requirements in subsection (e) add little to the system and primarily serve as an enforcement mechanism.

RESPONSE: The Commission disagrees. The mechanism contained in this subsection is important to the system, as it enables the Commission to track compliance or prove non-compliance, allowing for greater enforcement. Compliance and enforcement are important to the system as a whole; all participants benefit when all parties are in compliance.

§133.301(f)

COMMENT: Commenter recommended that the sender be required to initiate a new bill and not send a bill with handwritten corrections as handwriting is not always legible.

One of these commentors recommended that interest payments be suspended for the appeal period on bills that an insurance carrier pays after reconsideration and/or medical dispute resolution, stating that health care providers may try to delay requests in an effort to increase interest payments.

RESPONSE: The Commission agrees in part. Section 133.1(3) requires documentation to be legible; §134.800 of this title (relating to Required Billing Forms and Information) was changed to include legibility as a requirement for submitting bills. Therefore, corrections need not be in a specific form of writing, but must be legible. This will accomplish what is needed, with the least amount of time and expense.

The Commission disagrees with the recommendation to suspend interest during appeal periods. Whether an insurance carrier pays voluntarily on or after the 60th day, or pays involuntarily (as the result of an order to pay), on or after the 60th day, the insurance carrier is liable for interest for the entire period between the 60th day after receipt of a complete medical bill and the date of payment. Interest is reimbursement for the health care provider's loss of the use of the money to which the health care provider was initially entitled. It is a far greater advantage to a health care provider to timely request reconsideration and medical dispute resolution and collect appropriate payment as early as possible, than to intentionally delay the requests in order to increase the interest payment. The earlier use of the money to which a health care provider is entitled is a far greater benefit to a health care provider than collecting more interest.

§133.301(g)

COMMENT: Commenter recommended that insurance carriers be able to suspend the 45-day time frame for paying medical bills until a health care provider has responded to the insurance carrier's request for additional documentation. The commenter stated that health care providers will have no incentive to comply with requests for additional documentation if their bills will be paid whether they respond or not.

RESPONSE: The Commission disagrees. When a heath care provider does not send sufficient documentation, and does not respond timely to the insurance carrier's request for additional documentation, the insurance carrier must review the bill based on the information available. If the information available does not support the level of service for which the health care provider billed, the insurance carrier may deny payment for the bill. Therefore, the health care provider's incentive for supplying appropriately requested additional documentation under subsections (c)-(d) is to facilitate payment of the bill. This does not change the insurance carrier's statutory 45-day time frame to process a bill, required by §408.027 of the Texas Labor Code.

§133.304

COMMENT: Commenter strongly agreed with all sections of this rule, particularly with subsection (i)(2). The commenter felt very strongly that this must be approved. The commenter suggested that a health care provider should be able to show payments on an appeal to the carrier under (k)(1)(B).

RESPONSE: The Commission agrees. As to subsection (k), the rule specifies what a health care provider must include with a request for reconsideration of a payment. This does not limit the documentation or information a health care provider may send. Subsection (k)(2) requires the health care provider to include a copy of the EOB; this document should include payment information. Subsection (k)(3) requires the health care provider to include a "claim-specific substantive explanation that enables the insurance carrier to understand the sender's position .... rebut the insurance carrier's reason for its action ...." This allows the health care provider to send any and all information and documentation to support its position.

COMMENT: Commenter made extensive recommendations regarding co-surgeon reimbursement.

RESPONSE: This comment refers to the Commission's Medical Fee Guideline, not to Chapter 133 rules. This information will be provided to the Medical Review Division for consideration in revisions of the Medical Fee Guideline.

§133.304(b)

COMMENT: Commenter pointed out that the reference in §133.304(b)(1) to the definition of fair and reasonable reimbursements should be §133.1(8), not §133.1(7).

RESPONSE: The Commission agrees. The reference to §133.1(8) has been changed.

COMMENT: Commenter recommended that insurance carriers be allowed to request refunds for one calendar year from the date of service(s), in order to be consistent with the provider's time frame for requesting medical dispute resolution. The commenter also disagreed with limiting a carrier's request for overpayment to subsection (j)(2).

RESPONSE: The Commission agrees in part. Forty-five days from the date an insurance carrier receives a complete medical bill is sufficient for requesting a refund of overpayment; in the event that the insurance carrier performs an on-site audit, subsections (d) and (e) of §133.304 apply. If the health care provider disputes the refund request, the insurance carrier may request medical dispute resolution. Forty five days is set by statute as the time period for an insurance carrier to pay a health care provider under Texas Labor Code, §408.027. The reference to subsection (j)(2) has been deleted from subsection (b)(1).

§133.304(d)

COMMENT: Commenter recommended that subsection (d) be changed from "... provided by the Commission fee guidelines in effect for the dates of service being audited or 50% of the amount billed for treatment(s) and/or service(s) without an established maximum allowable reimbursement ....", to read "... provided by the Commission fee guidelines in effect for the dates of service being audited or 50% of the amount determined in accordance with §133.1(8) for treatment(s) and/or service(s) without an established maximum allowable reimbursement ...."

RESPONSE: The Commission disagrees. The definition of a fair and reasonable reimbursement (§133.1(8)) includes treatment(s) and/or service(s) for which the Commission has established an MAR as well as treatment(s) and/or service(s) for which the Commission has not established an MAR. Adding the suggested phrase is redundant. Also, §408.027 of the Texas Labor Code requires payment of 50% of the billed charge, which precludes paying 50% of an amount the insurance carrier determines to be fair and reasonable.

§133.304(f)

COMMENT: Commenter recommended amending the rule to require insurance carriers to send a copy of the EOB to injured employees only upon request.

RESPONSE: The Commission disagrees. The Texas Labor Code, §408.027, requires that insurance carriers send a copy of the EOB to injured employees in specified situations; the Commission cannot change this requirement by rule.

§133.304(g)

COMMENT: Commenter recommended amending this subsection to indicate that physical therapists and occupational therapists are also eligible to perform peer reviews, in order to make it consistent with the Texas Department of Insurance utilization review rules, and requiring that any doctor eligible to perform peer reviews should be on the Commission's approved doctor list.

RESPONSE: The Commission agrees. Subsection (g)(1) was changed to include other licensed health care providers. Subsection (g)(2) specifies that the reviewer must be licensed, which excludes nonlicensed individuals working under the supervision of licensed individuals. Also, in order to avoid confusion between these rules and the Texas Department of Insurance utilization review rules, subsection (g)(1) was changed to require a same or similar specialty as the prescribing or performing health care provider.

Subsection (g) already requires that the reviewer, if a doctor, not have been removed from the Commission's approved doctor list; to require that the doctor be listed on the approved doctor list would have the effect of limiting doctors who conduct reviews to those who are licensed by the State of Texas or who have applied to the approved doctor list. The approved doctor list includes only doctors as defined by §401.011 of the Texas Labor Code, and does not include other types of health care providers. Because subsection (g) allows licensed health care providers other than doctors to conduct reviews, to require that doctor peer reviewers be listed on the approved doctor list would impose a stricter standard on doctors than that applied to other health care providers.

§133.304(h)

COMMENT: Commenter disagreed with the insurance carrier being required to submit a copy of the peer review report including specific information. The commenter suggested requiring the insurance carrier to send one redacted copy of the peer review report with the first denial or reduction, including the reviewer's professional discipline and specialty information but not including the reviewer's name and license number.

RESPONSE: The Commission disagrees. The information required in this subsection is necessary in order for the Commission to meet its compliance monitoring obligations, and that this requirement will also enhance communication among the parties and facilitate dispute resolution.

§133.304(i)

COMMENT: Commenter agreed that carriers must comply with the statutory standard for determining fair and reasonable payment and apply that consistently, but strongly disagreed that the methodology should be released to any party as this methodology requires extensive research and support and is deemed proprietary by the Attorney General. In addition, the commenter stated that documenting each claim file with the methodology is unnecessarily burdensome since the standard is determined on a service basis up front regardless of claim. The commenter recommended that the carrier could be required to maintain the methodology on file but not in each claim file.

RESPONSE: The Commission agrees in part. Although it is not clear why commenter asserts that payment methodology is proprietary, subsection (i) does not require an insurance carrier to release the information to any party other than the Commission; the information is open to Commission review. If requested under open records, a carrier will have an opportunity to present confidentiality arguments to the Attorney General's Office. Further, this subsection does not require the insurance carrier to include the methodology in each claim file. The insurance carrier may keep a separate file of methodologies, reference the methodology used in an individual claim file, and explain and document in an individual claim file any deviation from the usual methodology. Subsection (i) has been changed to clarify that the insurance carrier is not required to include its entire methodology in each claim file.

The commenter is incorrect in the statement that reimbursement for these treatment(s) and/or service(s) should be determined up front on a service basis; insurance carriers must determine the reimbursement for any treatment(s) and/or service(s) for which the Commission has not determined an MAR on a case-by-case basis, not "a service basis up front regardless of claim". The variability of those treatment(s) and/or service(s) makes setting a standard reimbursement impossible; otherwise, the Commission would have set an MAR for them.

§133.304(j)

COMMENT: Commenter recommended deleting this subsection for the following reasons:

1. Section 124.2 of this title contains various notice requirements, all but one of which (the notice of denial mentioned in §124.2(d)) are unrelated to the issue of medical payments.

2. The Appeals Panel has held that the Texas Labor Code does not allow creation of coverage where none exists simply because a carrier fails to file a required notice.

3. Not every reduction or denial of a charge for a specific medical service rises to the level of an extent of injury dispute. Specifically, if the medical bill and documentation do not contain the information required by §124.1(a) to create a notice of injury, then the carrier is not required to respond with a notice of denial regarding an extent of injury issue. The carrier is still entitled to reduce or deny specific charges on the bill as unrelated to the compensable injury.

4. Finally, notice of denial of a claim is considered timely if filed as late as 60 days after receipt of notice of an injury. In numerous cases, the Appeals Panel has held that this same 60-day deadline applies to disputes regarding coverage, liability, and extent of injury. A medical bill could serve as notice of either a new injury or an injury to an additional body part, if it contained all of the information required by §124.1(a). The receipt of such a medical bill would then trigger two separate investigation processes with two different deadlines: adjudication of allowable charges on the bill (using form TWCC-62) within 45 days of the date of its receipt, per §133.300(h), and issuance of notice of claim dispute (using form TWCC-21) within 60 days after receipt of the bill, in accordance with the Texas Labor Code.

RESPONSE: The Commission disagrees for the following reasons:

The notice required by §124.2 of this title (relating to Carrier Reporting and Notification Requirements) and referenced in this subsection clearly refers to the insurance carrier's dispute of compensability, liability, and/or relatedness. Therefore, this subsection refers to the notice required by §124.2, regarding compensability, liability, and relatedness (extent of injury).

Subsection (j) does not establish carrier liability; it simply states that an insurance carrier that denies payment of a medical bill, based on the reasons listed in this subsection, must timely file the notice required by §124.2; otherwise, the insurance carrier has unreasonably denied payment on the medical bill. The notice required in §124.2 is timely filed if filed in accordance with §124.3. However, subsection (j) has been changed to clarify this point.

If an insurance carrier denies payment on a medical bill because the insurance carrier disputes relatedness (extent of injury), the insurance carrier is disputing the compensability of the condition for which that medical treatment was provided. This does not mean that the insurance carrier is required to dispute payment of all charges on that medical bill, or to dispute all charges on that medical bill for the same reason. Again, §124.2 applies.

Appeals Panel decisions are based on rules that are in effect at the time of the decision, and may not apply to future rules.

The Commission agrees that a bill may trigger two investigative procedures. However, this does not create a conflict between the two investigations. Section 408.027 of the Texas Labor Code requires payment or dispute of a medical bill within 45 days; §409.021 of the Texas Labor Code allows 60 days to review compensability. If an insurance carrier pays a medical bill for services that are later finally adjudicated to be not compensable, the insurance carrier may pursue a refund from the health care provider, and the refund request is then outside the scope of the time frames in §133.304 governing refund requests because this rule applies only to compensable injuries and illnesses.

§133.304(k)

COMMENT: Commenter supported the addition of subsection (k) to the rule.

RESPONSE: The Commission agrees.

COMMENT: Commenter suggested requiring a time frame for the sender's request for reconsideration that is consistent with the Texas Department of Insurance's utilization review rules.

RESPONSE: The Commission disagrees. A party that requests medical dispute resolution is limited to one year from the date of service to make the request. Because the insurance carrier is entitled to 21 days in which to review a request for reconsideration, a health care provider has a built-in deadline for requesting reconsideration, if the health care provider wishes to leave itself the option of requesting medical dispute resolution (in the event that the insurance carrier's response after reconsideration does not satisfy the health care provider). Because medical dispute resolution is the health care provider's only recourse to appeal the insurance carrier's response to reconsideration, this should serve as incentive to health care providers to request reconsideration timely.

In reviewing the rules, staff realized that the opening phrase in subsection (k) limiting reconsideration to bills not subject to an onsite audit has no merit. This phrase has been deleted and subsection (m) changed to coincide with subsection (k).

§133.304(l)

COMMENT: Commenter disagreed with a 21-day turnaround time for responding to a request for reconsideration and suggested that an insurance carrier be afforded 45 days to process appeals.

RESPONSE: The Commission disagrees. In the case of reconsideration, the insurance carrier has already reviewed the medical bill in question, and should not require as much time for a subsequent review as for an initial review.

Further, a health care provider is restricted from requesting medical dispute resolution until at least 60 days after an insurance carrier receives a complete medical bill, unless the insurance carrier finishes its audit of the bill earlier (§133.305 (d)(2)). The health care provider is required to request reconsideration before it can request medical dispute resolution on a medical bill, and is further limited to requesting medical dispute resolution within one year of the date of service in dispute. The time frame, then, for completing the reconsideration process and accessing medical dispute resolution represents a significant portion of the amount of time that can elapse before a health care provider loses access to medical dispute resolution. Increasing the time an insurance carrier has to respond to a request for reconsideration would not significantly help insurance carriers and would unnecessarily shorten the amount of time a health care provider has to decide whether to pursue medical dispute resolution and then to properly prepare the request for medical dispute resolution.

§133.304(m)

COMMENT: Commenter requested clarification about determining the "date sent".

RESPONSE: The "date sent" is defined in §102.4(h) (relating to Computation of Time). Also, subsection (m)(2) was changed to clarify the date referred to.

§133.304(n)

COMMENT: Commenter strongly agreed with this item, stating that if health care providers resubmit bills, insurance carriers should not be required to process the resubmitted bills.

RESPONSE: The Commission agrees. Subsection (n) does not require an insurance carrier to process resubmitted bills. It requires an insurance carrier to process requests for reconsideration as provided in subsection (k). In reviewing this subsection, staff realized that a health care provider is required to include a copy of the medical bill with a request for medical dispute resolution when the issues in dispute involve payment. Subsection (n) was changed to make an exception to the prohibitions against resubmitting medical bills to make it consistent with the requirement in other parts of the rules to include a copy of the medical bill in a request for reconsideration and medical dispute resolution. This information is necessary for making the determinations required for reconsideration and medical dispute resolution and may not be readily available to the carrier or dispute resolution officer unless submitted with the request.

§133.304(p)

In reviewing the rules, staff realized that subsection (p) was not compliant with Texas Labor Code, §413.031. Section 133.1 has been amended to limit insurance carrier requests for medical dispute resolution of a refund request to instances in which the insurance carrier did not earlier make full payment on the medical bill. This brings subsection (p) into compliance with the Texas Labor Code.

§133.304(q)

COMMENT: Commenter recommended amending the first sentence to read, "All bills with final action taken on or after the 60th day after the date the insurance carrier received the original completed medical bill shall include interest", in order to coincide with §413.019 of the Texas Labor Code.

RESPONSE: The Commission disagrees. The definition of "final action" in §133.304(b) includes actions other than payments. If there is no payment, there is no interest. Since §413.019 references payment, the subsection is consistent with the statutory language.

§133.305

COMMENT: Commenter asked for clarification of the jurisdiction between the Hearings Division (HD) and the Medical Review Division (MRD), stating that referring a request for dispute resolution between the two divisions is unnecessarily frustrating and time consuming. The commenter cited Appeals Panel decision 991335, which the commenter interpreted to indicate that the HD should decide if the injured worker is entitled to medical care for the conditions and symptoms for which treatment is sought, and that the MRD should resolve disputes on the necessity of medical care and the amount to be paid for that care.

RESPONSE: The Commission agrees. The commenter appears to be highlighting the distinction between matters within the jurisdiction of the MRD and matters within the jurisdiction of the HD. Under §413.031 of the Texas Labor Code, the MRD determines what "health care is reasonably required by the nature of the injury." Benefit disputes, including compensability, are adjudicated by the HD. Section 133.305(a) defines the disputes that the MRD will resolve: reimbursement to injured employees for out-of-pocket medical expenses, an insurance carrier's request for a refund from a health care provider, the amount an insurance carrier pays a health care provider for medical treatment(s) and/or service(s), the medical reasonableness or necessity of treatment(s) and/or service(s), and preauthorization denials.

Section 133.305(n) has been changed to clarify that when an insurance carrier raises a dispute pertaining to liability for the claim, compensability, or extent of injury, the MRD will resolve the medical disputes as defined in §133.305(a), regardless of other disputed issues. The parties may simultaneously pursue resolution of other issues through the HD.

Under current practice, the MRD dismisses requests for medical dispute resolution that include disputes pertaining to liability for the claim, compensability, or extent of injury, postponing resolution of the medical dispute issues until the HD has adjudicated the other issues in dispute. New §§133.305 and 133.306 will change this practice, eliminating the delays this causes.

§133.305(a)

COMMENT: Commenter asserted that the MRD is in violation of the Commission's duty to enforce the Texas Labor Code if the MRD issues a decision in favor of a requestor solely because the respondent did not timely file a response, if the requestor has clearly violated the Texas Labor Code or Commission rules.

RESPONSE: The Commission agrees in part. When a respondent fails to respond timely to a request for medical dispute resolution, the Division will make and enter its decision based on the request, without considering the response. The Division will not make and enter a decision in favor of the requestor if it finds that the requestor is not in compliance with the Texas Labor Code and/or Commission rules. Section 133.305(j) has been changed to reflect this.

Also, in reviewing the rules, staff realized that subsection (a) should include a definition for extent of injury and that the definition of a medical necessity dispute should be amended. Subsection (a) was changed accordingly.

§133.305(c), (e)

COMMENT: Commenter recommended stronger language to reinforce the requirement that a party requesting medical dispute resolution must request reconsideration before requesting medical dispute resolution; the commenter recommended stipulating that failure to request reconsideration before requesting medical dispute resolution should result in an automatic dismissal.

RESPONSE: The Commission agrees in part. According to §133.304(m), a requestor must have requested reconsideration from the respondent prior to requesting medical dispute resolution. When the Division receives a request for medical dispute resolution, the Division will review the request for completeness. In order to be a complete request, the requestor must have included documentation showing the request for reconsideration and the results of the request, in accordance with §133.305(e). If the request is not complete, subsection (m) allows the Division to dismiss the request, and permits the requestor to amend and resubmit the request. Further, subsection (e) was amended to include the list of required components, which includes documentation of the request for reconsideration.

In reviewing subsection (c), staff realized that the withdrawal of proposed §134.604 leaves a gap in the reconsideration process when preauthorization is in dispute. Subsection (c) was therefore changed to require an insurance carrier to respond to a request for reconsideration in a preauthorization dispute within 7 days.

In addition, §133.305(m) was changed to include failure to request reconsideration as a reason for the Division to dismiss the request.

§133.305(d)

COMMENT: Commenter recommended amending subsection (d)(3) to allow insurance carriers to request medical dispute resolution on a refund request within one calendar year after the date of payment, in order to allow for possible medical dispute resolution on refunds for bills that an insurance carrier receives toward the end of the health care provider's time frame for submitting.

RESPONSE: The Commission agrees in part. Subsection (d) was changed to allow the insurance carrier to request medical dispute resolution within one calendar year from the insurance carrier's date stamp indicating when the insurance carrier received the complete medical bill, or, absent the insurance carrier's date stamp, one calendar year from the date of service. Tying the time frame to the date the insurance carrier date stamped the completed bill rather than the date of payment allows the insurance carrier approximately the same amount of time a health care provider has for requesting medical dispute resolution without unnecessarily extending the time frame: A health care provider is restricted from requesting medical dispute resolution until after 60 days from the date it sent a medical bill unless the insurance carrier has responded earlier; tying the time frame for an insurance carrier to request medical dispute resolution to the date it paid instead of the date it received a medical bill provides similar times for the carrier and the health care provider.

Also, in reviewing the rules, subsection (d) was changed to clarify that a requestor that fails to timely file a request for medical dispute resolution waives its right to medical dispute resolution.

COMMENT: Commenter stated that health care providers have recourse to medical dispute resolution after a Commission audit, but that the rules do not mention this for an insurance carrier. The commenter recommends amending the rule to read, "A health care provider or insurance carrier that disputes a refund order made by the Commission must...".

RESPONSE: The Commission agrees. Subsection (d) was changed to allow insurance carriers to be a party to a health care provider refund order dispute.

COMMENT: Commenter recommended including the items necessary to make a complete request.

RESPONSE: The Commission agrees. Subsection (e) was changed to include the requirements for a request for medical dispute resolution.

§133.305(e)

COMMENT: Commenter recommended amending the language to ensure that the Division will dismiss requests for medical dispute resolution that are not timely submitted.

RESPONSE: The Commission agrees. Subsection (m) includes untimely submission as a reason to dismiss the request. In reviewing the rules, staff realized that subsection (a) should also include the requirement that all requests for medical dispute resolution and responses to those requests must contain all the components required by §133.305 and the TWCC-60a and TWCC-60 b forms. Subsections (a), (j), and (m) were changed accordingly.

§133.305(f)

In reviewing the rules, staff realized that subsection (f) favors health care providers above other system participants. Subsection (f) was changed to replace "health care provider" with "requestor" in requesting a peer review of medical services related to a medical dispute.

§133.305(i)

COMMENT: Commentors objected to the seven-day time frame for responding to a request for medical dispute resolution. One of the commentors did not offer an alternative; one of the commentors recommended allowing ten days for a response, stating that this will give the respondent sufficient time to review the request without risking default for failure to timely respond; and one of the commentors recommended allowing 30 days for a response.

RESPONSE: The Commission agrees in part. The rule was amended to allow a respondent seven calendar days in which to respond to a request for medical dispute resolution in a preauthorization dispute, and 14 calendar days in which to respond to a request for medical dispute resolution in all other types of disputes. This is sufficient response time, given that, by the time a party requests medical dispute resolution, both parties have reviewed the issue at least twice: once at initial review, and again upon reconsideration. Therefore, the parties will already have considered and documented the disputed issues.

Seven- and 14-day time frames are easy to compute. Fourteen days to respond to all but preauthorization disputes will allow respondents time to locate and review files for these more time-consuming requests.

The shorter response time for requests for medical dispute resolution involving preauthorization is reasonable because these disputes delay an injured employee's medical treatment. The seven-day response time will assist in the Commission's ongoing efforts to reduce the time required to resolve these disputes, without placing an undue burden on any party. Also, the amount of information to review for preauthorization disputes is generally significantly less than the amount of information for other types of disputes.

New §133.305(j)

In response to public comment regarding default, §133.305(a) was changed to delete the definition of default, and §133.305(j) to clarify that the Division will not consider an untimely filed response and will enter a decision based on the request. This follows the procedures that the State Office of Administrative Hearings established and implemented for cases in which a party fails to make an appearance at an administrative law hearing.

§133.305(m)

Upon review of the rules, subsection (m) did not allow the Division to dismiss a request for medical dispute resolution when the request was incomplete. Subsection (m) was amended to allow for dismissal of an incomplete request.

§133.305(o)

COMMENT: Commenter believed that the Commission should be required to supply supporting explanations for decisions and have a specific turn-around time on rendering medical dispute decisions. Several commentors mentioned the length of time the Division takes to resolve a dispute as a reason for their recommendations.

RESPONSE: The Commission disagrees. When the Division issues a decision, it includes rationale and support for the decision. The Commission is making progress in reducing the time frames for reaching resolution on medical disputes. Amending the medical dispute resolution process is expected to contribute to this effort by streamlining and better defining the process, building in a formal reconsideration process, and shortening unnecessarily long response times.

Over the last six years, the Division has instituted several very successful initiatives that have significantly reduced the length of time required to resolve disputes. Although resolution times have decreased, the number of disputes has continued to increase. The Commission continues to explore new strategies to improve turn-around time, as cited in the recent Research and Oversight Council's report, such as mediation, informal resolution, imposing additional penalties for violations, reducing frivolous and arbitrary reductions and denials.

Subchapter A. GENERAL RULES FOR REQUIRED REPORTS

The new rule is adopted under the following statutes: Texas Labor Code, §402.061, which gives the Commission the authority to adopt rules as necessary to implement and enforce the Act; Texas Labor Code, §401.023, which directs the Commission to set an interest or discount rate; Texas Labor Code, §401.024 as amended by the 76th Texas Legislature, which provides the Commission the authority to require use of facsimile or other electronic means to transmit information in the system; 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 manner and procedure for transmission of information to the Commission; Texas Labor Code, §406.010, which authorizes the Commission to adopt rules regarding claims service; Texas Labor Code, §408.025, which requires the Commission to specify by rule the reports a health care provider is required to file; Texas Labor Code, §408.027, which provides for insurance carrier payment of health care providers; Texas Labor Code §409.009, which allows a person to become a sub-claimant to a workers' compensation claim; Texas Labor Code, §413.007, which directs the Medical Review Division to maintain a statewide database of medical billing information; Texas Labor Code, §413.015, which directs insurance carrier payments to and audits of health care providers; Texas Labor Code, §413.019, which directs that interest be paid on late payments, refunds, or overpayments; Texas Labor Code, §413.031, which directs medical dispute resolution; Texas Labor Code §413.042, which prohibits private claims.

§133.1.Definitions for Chapter 133, Benefits - Medical Benefits.

(a)

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1)

Acknowledgment date- The date a document is deemed received under §102.5(d) of this title (relating to General Rules for Written Communications to and from the Commission).

(2)

Commission- The Texas Workers' Compensation Commission.

(3)

Complete medical bill - A medical bill that:

(A)

is submitted timely, in accordance with §134.801 of this title (relating to Submitting Medical Bills for Payment);

(B)

is on the Commission-prescribed form and that includes the information required by the instructions for the form;

(C)

includes correct billing codes from Commission fee guidelines in effect on the date(s) of service (unless the bill is a request for reimbursement by a person other than a health care provider);

(D)

contains supporting documentation when such documentation is specifically required by Commission rules or guidelines, unless the required documentation was previously provided to the insurance carrier or its agents; and

(E)

includes the following legible supporting documentation, unless previously provided to the insurance carrier or its agents:

(i)

for the three highest level office visits, single and interdisciplinary programs such as work conditioning programs, work hardening programs, and physical medicine treatment(s) and/or services(s): a copy of progress notes and/or SOAP (subjective/objective assessment plan/procedure) notes, which shall substantiate the care given and the need for further treatment(s) and/or services(s), and indicate progress, improvement, the date of the next treatment(s) and/or service(s), complications, and expected release dates,

(ii)

for surgical services rendered on the same date for which the total of the fees established in the current Commission fee guideline of greater than $500 or DOP (documentation of procedure): a copy of the operative report,

(iii)

for a medical bill that includes charges for the professional component of diagnostic, radiological, or pathological tests: a report on the test results, and

(iv)

for hospital services: an itemized statement of charges.

(4)

Date of service - The actual date on which a health care provider provided treatment(s) and/or service(s) to an injured employee.

(5)

Division - The Medical Review Division of the Texas Workers' Compensation Commission.

(6)

Explanation of benefits - The information an insurance carrier sends to the required parties when it makes payment or denies payment on a medical bill, and that includes, when it has reduced or denied payment on the bill, an explanation of all the reason(s) for the reduction and/or denial.

(7)

Emergency - Either a medical or mental health emergency as described below:

(A)

a medical emergency consists of the sudden onset of a medical condition manifesting itself by acute symptoms of sufficient severity, including severe pain, that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health and/or bodily functions in serious jeopardy, and/or serious dysfunction of any body organ or part.

(B)

a mental health emergency is a condition that could reasonably be expected to present danger to self or others.

(8)

Fair and reasonable reimbursement - Reimbursement that meets the standards set out in §413.011 of the Texas Labor Code, and the lesser of a health care provider's usual and customary charge, or

(A)

the maximum allowable reimbursement, when one has been established in an applicable Commission fee guideline,

(B)

the determination of a payment amount for medical treatment(s) and/or service(s) for which the Commission has established no maximum allowable reimbursement amount, or

(C)

a negotiated contract amount.

(9)

Health care provider or provider -

(A)

an individual who is licensed to provide or render and who provides or renders health care; or

(B)

a nonlicensed individual who provides or renders health care under the direction or supervision of a doctor; or

(C)

a hospital, emergency clinic, outpatient clinic, or other facility that provides health care.

(10)

Insurance carrier or carrier -

(A)

a person authorized and admitted by the Texas Department of Insurance to do insurance business in this state under a certificate of authority that includes authorization to write workers' compensation insurance;

(B)

a certified self-insurer for workers' compensation insurance; or

(C)

or a governmental entity that self-insures, either individually or collectively.

(11)

Insurance carrier agent - A person or entity that the insurance carrier contracts with or utilizes for the purpose of providing claims service or fulfilling the insurance carrier's obligations under the Texas Labor Code or Commission rules.

(12)

Payment exception codes - The Commission-mandated codes insurance carriers use to identify the general rationale for reducing or denying payment for a properly completed medical bill.

(13)

Reconsideration - The second review an insurance carrier shall perform of a health care provider's medical bill or preauthorization request, in response to the health care provider's request for the second review.

(14)

Required medical report - A medical report, and/or narrative report that a health care provider submits in accordance with this title.

(15)

Retrospective review - The process of an insurance carrier reviewing health care that has been provided to an injured employee in order to determine if the health care rendered was reasonable and medically necessary and billed in accordance with the appropriate Commission fee guideline, as described in §133.301 of this title (relating to Retrospective Review of Medical Bills). The insurance carrier may perform this process manually or through automation.

(16)

Unbundling - Submitting bills in a fragmented way, using separate billing codes for multiple treatments or services when there is a single billing code that includes all of the treatments or services that were billed separately, or fragmenting one treatment or service into its component parts and coding each component part as if it were a separate treatment or service.

(17)

Upcoding - Using a diagnosis or billing code that does not best represent the injured employee's actual condition or the treatment or service actually performed.

(b)

This rule shall apply to all dates of service on or after July 15, 2000.

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 February 22, 2000.

TRD-200001312

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Effective date: July 15, 2000

Proposal publication date: November 19, 1999

For further information, please call: (512) 804-4287

Subchapter A. GENERAL RULES FOR REQUIRED REPORTS

The Texas Workers' Compensation Commission (the Commission) adopts an amendment to §133.100, concerning Required Medical Reports with changes to the proposed text as published in the August 27, 1999, issue of the Texas Register (24 TexReg 6669). Simultaneously the Commission adopts the repeal of §133.101 concerning Initial Medical Report; §133.102 concerning Subsequent Medical Report; and §133.103 concerning Specific Medical Reports.

As required by the Government Code, §2001.033(1), the Commission's reasoned justification for this rule is set out in this order which includes the preamble, which in turn includes the rule. This preamble contains a summary of the factual basis for the rule, a summary of comments received from interested parties, names of those groups and associations who commented and whether they were for or against adoption of the rule, and the reasons why the Commission disagrees with some of the comments and proposals.

Changes made to the proposed rule are in response to public comment received in writing and are described in the summary of comments and responses section of this preamble. Though a public hearing was held on September 15, 1999, no testimony was offered. Other changes were made for consistency or to correct typographical or grammatical errors and to address issues identified by the Commission during its reexamination of the rule while considering the input provided by the public. Specifically, changes were made to §133.100(b).

The amendments and repeals are adopted to address new legislation enacted by the 76th Legislature. Specifically, House Bill 2513 required the Commission to promote communication to enhance return to work. In addition, House Bill 2511 amended Texas Labor Code, §401.024, authorizing the Commission to adopt rules to require electronic transmission of information by means such as facsimile, email, and electronic data interchange. This authorization is utilized in the adopted rules to achieve a legislative goal of reducing paper communication requirements in the workers' compensation system while ensuring timely and effective communication between system participants. The increased use of facsimile and electronic transmission will also improve benefit delivery, reduce disputes, make dispute resolution easier, reduce violations, and make it easier to hold system participants accountable for their actions and inactions.

Regarding the repeals, with the development of rules to encourage return to work, the Commission examined health care provider reports in general and found that several of the existing reports do not serve the purpose for which they were intended and are now largely redundant to §129.5 (concerning Work Status Reports) and new §133.1 (concerning Definitions for Chapter 133, Benefits - Medical Benefits) being simultaneously adopted.

Amendment of §133.100 - Required Medical Reports.

The previous language in subsection (b) was deleted because it was a noninclusive listing of required medical reports which are specifically required in other rules. This list served no purpose and required the Commission when adding a required report to both adopt a new rule regarding the new report and amend the list contained in §133.100.

The new language of subsection (b) emphasizes use of "instant" communication such as electronic transmission through facsimile or email to reduce the delay in providing critical information for benefit delivery and reduce the use of paper as required by House Bill 2511. The language is written to make use of traditional postal mail a last resort for filing the report. As use of email and other forms of instant communication by system participants expands, the rules will reduce the reliance on traditional paper mail that may result in over payments, under payments, and delayed payments. In addition, language was added to ensure that the rule does not create an expectation that providers regularly submit reports multiple times (i.e. once with a medical bill and then later by facsimile).

Subsection (c) regarding enforcement and violations was removed because it is redundant to the statute. Removal of the enforcement language was not intended to limit the Commission's authority to take enforcement action for violations of this or any other rule. Rather, the previous language did not address all of the methods of enforcement that the Commission has at its disposal for these violations and could be interpreted as limiting the Commission's authority. The Commission's authority to enforce the statute and rules is granted in multiple provisions of the statute and duplicate language in the rules is redundant and unnecessary.

Repeal of §133.101 - Initial Medical Report, §133.102 - Subsequent Medical Report and §133.103 - Specific Medical Reports

These rules were repealed because discussions with members of the carrier and health care provider communities suggested that these reports did not serve the purpose for which they were intended. Carriers primarily obtain information about an employee's medical condition through documentation submitted with medical bills. It was very common for providers to merely fill out the identifying information at the top of the required form and then attach their office notes to the report. Thus the rules required providers to fill out extra paperwork that did not serve the carrier's needs and that represented a practice to which they are not accustomed outside of workers' compensation.

Comments on the proposed amendments and repeals were received from the following groups: Health Watch, Inc.; Texas Workers' Compensation Insurance Fund and NeuroCare Network.

Health Watch, Inc. strongly supported the repeals. Texas Workers' Compensation Fund suggested delaying adoption of the rules until the other rules in Chapter 133 were brought for adoption (which was done) and made another suggestion to limit facsimile and electronic transmission to voluntary use. NeuroCare Network asked several questions about the proposed changes.

Summaries of the comments and Commission responses follow.

Comment: Commentor expressed strong support for the repeal of §§133.101, 133.102, and 133.103.

Response: The Commission agrees.

Comment: Commentor suggested that the elimination of the listing of required medical reports in §133.100 would allow the Commission to change required reports without further rule-making action. Commentor suggested that the Commission continue to seek input from carriers and health care providers on the format and contents of reports.

Response: The Commission disagrees that the change in §133.100 has any significant effect on the Commission's ability to change a required report. The Commission has always had the authority to revise reports, including reports specifically listed in rules without going through the rulemaking process. The change to this rule allows the Commission to add or delete a required medical report to the system, by adding or amending one rule rather than additionally having to amend §133.100 to reference the name of the new report or to delete a report from the list.

Regarding suggestion that the Commission seek input from system participants on report revisions, the Commission agrees that this can help to ensure that the revisions address the needs of all system participants and where possible attempts to seek additional input. It should be noted however, that it is difficult to create one form that will completely satisfy everyone. Some will find a form more detailed than they want while others will find it less detailed than they think it should be. Therefore, in drafting forms, the Commission tries to incorporate ideas from system participants which will make the form functional for all who must use it.

Comment: Commentor indicated support for technological advancements and the efficiencies they bring, but expressed concern that "a sudden requirement for all medical reports to be transferred electronically would bring undue burdens to all parties involved depending on their equipment and ability to adapt to an abrupt change in workflow from mail processing to electronic resource monitoring. In addition, quality varies widely in the use of different faxes. Although we do want to encourage the most expeditious method for receiving information, we cannot support mandating it as it would make some documentation and reports unreadable." Commentor suggested encouraging providers to submit reports electronically on a voluntary basis, but only require certain documents to be transmitted electronically.

Another commentor asked whether a provider would be required to fax to the insurance company the same information which is already included with the HCFA-1500 in order to be paid The commentor suggested that it would be redundant and costly to have to file this information by fax as well as with the bill. Commentor suggested that providers only be required to fax a report upon request from the adjuster.

Response: The Commission disagrees that use of facsimile and electronic transmission should be voluntary only. The Texas Legislature through the passage of HB 2511 directed the Commission to emphasize the use of facsimile and electronic transmission to reduce paper requirements in the system. Shifting to facsimile and electronic transmission also has the added benefit of speeding up communications within the system by eliminating the 3-5 days that mail takes to be delivered which should speed up benefit delivery.

The Commission agrees with the suggestion that providers should generally not have to separately submit reports by facsimile if they have already been provided with medical bills. However, there may be rare circumstances in which it would be appropriate for a carrier to request additional copies of previously filed reports (for example if said reports are attached to a medical bill which is in transit via mail and the carrier needs the information to resolve a preauthorization request). Therefore, it would be a mistake to completely forbid carriers from asking for additional copies of information.

In addition, in comments on other rules which contain similar transmission requirements, a number of commentors indicated concern regarding the sender's responsibility to identify a recipient's email address or facsimile number and how a report should otherwise be sent. Therefore subsection (b) has been modified to address these concerns as follows:

(b) A health care provider shall file required medical reports by facsimile or electronic transmission if the provider has been provided with a facsimile number or email address for the recipient, otherwise, the reports shall be sent by personal delivery or mail. A health care provider is not required to separately file reports which have previously been provided to the carrier without receiving compensation as provided in §133.106 of this title (relating to Fair and Reasonable Fees for Required Reports and Records).

Comment: Commentor suggested delaying adoption of these repeals until other rules relating to provision of medical status information with medical bills are adopted in order to ensure that carriers continue to have access to medical status information. Commentor stated, "Although the repeal of these rules will not require health care providers to submit the TWCC required reports, carriers still rely on and expect medical records to be sent with medical bills. Without medical records, carriers cannot make appropriate decisions when determining reimbursement to health care providers. On September 2, 1999, the commissioners voted to publish the proposed §133.300 rule series. The §133.300 series require the submission of medical documentation. Since these rules are contingent upon each other to provide overall effectiveness, we cannot support repealing §§133.101 through 133.103 without a mandatory replacement."

Response: The Commission agrees. The adoption of these changes has occurred concurrently with the adoption of the other rules in Chapter 133 relating to submitting medical documentation with medical bills.

Comment: Commentor asked what "medical reports" are, given the changes being proposed which eliminate the named list of required reports in §133.100, and what the "form and manner prescribed by the Commission" is, given the elimination of the TWCC-61 and TWCC-64s.

Response: The Consultant Medical Report and Physical or Occupational Therapy Report are required medical reports under this subchapter. The Commission has not issued specific TWCC-forms for these reports because the rules identify what needs to be included in the report. Per §133.100(b), in most cases, the form and manner for sending these reports will be facsimile or electronic transmission.

The Texas Workers' Compensation Commission (the Commission) adopts amendments to §134.6 and §§134.800 - 134.803, concerning medical billing and reimbursement, with changes to the proposed text as published in the September 24, 1999, issue of the Texas Register (24 TexReg 8129) and adopts the simultaneous repeal of §134.4, concerning the definition of a consulting doctor. The amendments are adopted to clarify and update the processes by which injured employees may be reimbursed for travel expenses, health care providers submit medical bills, and insurance carriers and health care providers pay interest on late payments.

As required by the Government Code, §2001.033(1), the Commission's reasoned justification for this rule is set out in this order, which includes the preamble, which in turn includes the rules. This preamble contains a summary of the factual basis for the rules, a summary of comments received from interested parties, names of those groups and associations who commented, whether they supported or opposed adoption of the rules, and the reasons the Commission disagrees with some of the comments and recommendations.

Changes made to the proposed rules are in response to public comment received in writing and at a public hearing held on December 1, 1999, and are described in the summary of comments and responses section of this preamble. Other changes were made for consistency or to correct typographical or grammatical errors and to address issues the Commission identified during its reexamination of the rules while considering the input provided by the public. In particular, changes were made to §§134.6, 134.800 - 134.803

The Commission adopts the amendments and the repeal to reinforce long-standing policies and to address problems with the previous rules, which the Claims Service Task Force (CSTF), other system participants, and Commission staff identified (the CSTF is a group of representatives from throughout the workers' compensation system, whom the Commission appointed to serve as a sounding board for ideas regarding rule development). Other changes include formatting and consistency issues designed to simplify and shorten rule construction. Additionally, the structure of the rules was changed to eliminate or significantly reduce ambiguity in the rules. The changes are designed to more clearly lay out expectations, so that all system participants will understand the requirements the Texas Labor Code and Commission rules place on them. These changes are expected to improve benefit delivery, increase and expedite communication among the parties, reduce the number of disputes and the time required to process them, simplify and accelerate medical dispute resolution, reduce violations, and strengthen the Commission's ability to hold violators accountable for noncompliance.

The effective date for all the amended rules is set out in each rule to allow sufficient time for system participants to make necessary adjustments to their business practices and to allow the Commission sufficient time to implement the necessary forms and procedures.

Repeal of §134.4 is adopted because the information contained in this rule has been expanded and clarified and placed in new §133.4 of this title (relating to Consulting and Referral Doctors), adopted simultaneously with this repeal. The repeal of §134.4 is effective March 13, 2000.

Amended §134.6 sets out deadlines for an injured employee to bill for and an insurance carrier to pay for travel expenses an injured employee incurs in the course of obtaining necessary medical treatment for a compensable injury. In addition, this section clarifies how to calculate travel expenses and sets out procedures to follow in the event the insurance carrier reduces or denies payment for these expenses. It also implements a form for the injured employee to use for billing for travel expenses.

This will standardize the process an injured employee uses to submit travel expenses to an insurance carrier, making the process easier for injured employees. It also clarifies the requirements an injured employee must meet in order to receive reimbursement for travel expenses. Clarification will decrease misunderstanding, thus decreasing the number of disputes based on those misunderstandings.

"Must" has been changed to "shall" where appropriate for consistency with other rules.

Amended §134.800 updates statutory references to the Workers' Compensation Act by using citation to the Texas Labor Code and sets out the appropriate form for submission of bills by various types of health care providers.

Amended §134.801 updates statutory references to the Workers' Compensation Act by using citation to the Texas Labor Code and includes instructions for sending an information copy of a medical bill to an injured employee, the injured employee's representative, and, upon request, to the Commission.

The health care provider's incentive for timely billing is early collection of reimbursement. Therefore, subsections (c), (d), and (e) as proposed have been deleted, leaving the responsibility for timely billing to the health care provider.

The major changes from the previous rule are subsections (e)-(g) (proposed as subsections (h), (i), and (j)), which are additions to clarify the circumstances under which an entity may submit medical bills for treatment(s) and/or service(s) that the entity did not perform. The adopted language allows billing agencies to perform the strictly administrative service of submitting medical bills and/or collecting payment for a health care provider. However, it prohibits the practice whereby one entity pays a reduced fee to the health care provider that provided the treatment(s) and/or service(s), then bills the workers' compensation insurance carrier a higher fee. This practice increases cost to the system without adding value to the system. One mandate from the 76th Legislature was to reduce medical costs. These paragraphs will help accomplish that mandate without adversely affecting the quality of medical care delivered to injured employees.

Subsection (h) adds a prohibition against submitting a medical bill to an injured employee for all or part of a fee. The Texas Labor Code prohibits a health care provider from pursuing a private claim against an injured employee. However, a trend has developed in which health care providers bill an injured employee for payments the insurance carrier has reduced or denied. This paragraph clarifies that this practice is prohibited.

Subsection (i) adds a prohibition against submitting a medical bill to an employer for charges an insurance carrier has reduced, denied, or disputed because such billing could circumvent the applicable fee guidelines and result in unnecessary costs to the workers' compensation system. The health care provider must resolve these charges through the appropriate dispute resolution channels. The portion of subsection (i) which would equate a health care provider's submission of a medical bill to an employer for charges an insurance carrier has reduced, denied, or disputed to billing an injured employee has been deleted. The statutory prohibition against billing an injured employee does not include billing an employer.

"Must" has been changed to "shall" where appropriate for consistency with other rules.

Amended §134.802 changes the time frame for carrier submission of medical bills to the Commission. The previous time frame was 15 days from the date the insurance carrier makes final payment on a medical bill. The new time frame is 30 days from the date the insurance carrier makes payment or denies payment on a medical bill. The longer time frame will allow insurance carriers more time to ensure that the data they submit is accurate and will comply with Commission requirements.

Amended §134.803 instructs insurance carriers and health care providers as to when and how to pay interest on late payments. The adopted language contains two significant changes: 1) it includes health care providers in the instruction to pay interest on late payments, and 2) it ties interest payments to new §133.304 of this title (relating to Medical payments and Denials), which specifies time frames for insurance carriers and health care providers for paying medical bills and refund requests, respectively. The adopted language delineates interest payments more clearly than the previous rule.

The following groups submitted comments on the proposed new rules: American Insurance Association, Texas Workers' Compensation Insurance Fund, Hammerman & Gainer, Aymara Lilienthal & Associates, and Texas Association of School Boards. A number of individuals also submitted comments.

All commentors indicated opposition or concern about various aspects of the proposed amendments and made recommendations for changes before adoption. Though these commentors indicated opposition to and/or concern about specific portions of the proposed amendments, none suggested that the rules should not be adopted. Summaries of the comments and Commission responses follow.

§134.6(a)

COMMENT: Commentors suggested that insurance carriers should be given the opportunity to see and comment on the form that TWCC will prescribe for the submission of employee requests for reimbursement of travel.

RESPONSE: The Commission agrees. The form for employee requests for travel reimbursement is currently under development. The Commission seeks input from system participants regarding forms when the forms are complex or there is a question as to information to be included on the form. The criteria for reimbursable travel expenses are set out in §134.6, and this information will be reflected in the form. Although this is not a complex form, the Commission plans to seek additional input prior to its issuance.

§134.6(b)

COMMENT: Commentors suggested changing the time frame for submitting a request for injured employee travel reimbursement from the proposed one year to between three and six months.

RESPONSE: The Commission disagrees. The Commission has previously imposed no time limit for filing travel reimbursement requests. This resulted in requests for review that were filed years after the injured employee incurred the expense. The time lags made it more difficult for insurance carriers to verify the requests. This one-year filing time frame limits the period for submitting the requests while providing a reasonable period of time for insurance carriers to verify the expenses, and allowing injured employees a reasonable amount of time to submit bills. In addition, the time limit provides an incentive for injured employees to submit requests on a regular basis.

Injured employees often face many burdens associated with their compensable injuries. Shortening the time for filing travel reimbursement requests may cause an unnecessary burden for injured employees.

COMMENT: Commentors suggested increasing the 20-mile threshold because the growth of suburbs makes 20 miles a reasonable distance to travel for medical care.

RESPONSE: The Commission disagrees. The 20-mile threshold has worked well for seven years. The growth of suburbs may change the perception of what is a reasonable distance to travel for health care, but it does not change the financial burden of travel on an injured employee.

COMMENT: Commentors suggested not restricting travel reimbursement to travel necessary to obtain medical care, expressing concern that this interferes with the injured employee's choice of health care provider. One of the commentors further suggested adding a subsection to allow for travel reimbursement to a health care provider 20 miles or more away from the injured employee's residence if the Commission approves and the insurance carrier does not dispute that choice of health care provider within 10 days.

This commentors also suggested adding a provision that the insurance carrier waives its right to dispute travel reimbursement if the insurance carrier fails to act on the reimbursement request within 45 days of receipt.

RESPONSE: The Commission disagrees. This provision does not hinder an injured employee's choice of health care provider; the injured employee may still choose his or her health care provider, but may not be entitled to travel expenses if that choice causes the injured employee to travel when reasonable and necessary care is reasonably available inside the 20-mile threshold. Allowing travel reimbursement when quality medical care is reasonably available within the 20-mile threshold unnecessarily adds costs to the workers' compensation system.

The process for submitting and reimbursing travel reimbursement is set up to roughly parallel the process for submitting and reimbursing other aspects of medical benefits, with the exception of allowing more time for submitting the request. Entitlement to travel reimbursement is not tied to timely payment of the reimbursement.

§134.6(c)

COMMENT: Commentors suggested amending subsection (c) to read, "The shortest route will be presumed to be the route which covers the shortest geographical distance unless another route is shown by the employee to take less time to travel."

RESPONSE: The Commission agrees in part. Subsection (c) was changed to include the instruction that the route shall be the shortest reasonable route, to prevent measurements based on unreasonable travel requirements, and to include the instruction that the distance traveled is measured from location to location, in order to clarify that it is not measured from city limit to city limit. In addition, language was added to clarify how mileage should be calculated in various situations and that the amount of reimbursement shall be based on the travel rate for state employees on the date the travel occurred. These changes should reduce disputes related to these issues.

§134.6(d)

COMMENT: Commentors points out that the rule does not address what the Commission will do in the event that the insurance carrier does not comply with subsection (d).

RESPONSE: The Commission disagrees that the rule should contain that information. Failure to comply with the Texas Labor Code or a Commission rule is an administrative violation for which the Commission may pursue a number of enforcement actions under the authority of the Texas Labor Code. To list the Commission's enforcement authority in each rule would be redundant to the statute and would unnecessarily lengthen the rule.

COMMENT: Commentors suggested that disputes regarding travel reimbursement be resolved through medical dispute resolution rather than through a benefit review conference.

RESPONSE: The Commission disagrees. Texas Labor Code, §413.031, provides that Medical Review will resolve disputes when a health care provider is: (1) denied payment or paid a reduced amount for the medical service rendered; (2) denied authorization for the payment for the service requested or performed if authorization is required by the medical policies of the commission; or (3) ordered by the division to refund a payment received for a medical service rendered. Because disputes regarding travel reimbursement do not involve these issues, the hearings process is the appropriate and most efficient method for resolving these disputes. Therefore, the Commission will retain its current procedure. See §133.305 with respect to medical disputes.

§134.800(a)

COMMENT: Commentors emphasized that medical bills should be legible.

RESPONSE: The Commission agrees. Regardless of the method of transmission, medical bills should be legible in order to facilitate efficient review and processing. Subsection (a) was amended by inserting the word "legible" before "medical bills".

§134.800(e)

COMMENT: Commentors recommended deleting subsection (e) because subsections (c) and (d) appropriately indicate that if the health care provider is not a hospital, it should bill on a HCFA-1500 form. Commentors contends, therefore, that there is no reason for another form.

RESPONSE: The Commission agrees in part. Dentists submit bills using the J-504 or J-505 form; therefore, subsection (e) was changed to provide for the use of these forms; all other health care providers use the forms specified in subsections (b), (c), and (d).

§134.800(f)

COMMENT: Commentors recommended requiring mutual agreement between the health care provider and the insurance carrier for facsimile transmission of medical bills by amending subsection (f) to read, "... may submit medical bills by mutually agreed upon facsimile or electronic transmission. ..." Another commentors suggested disallowing facsimile transmission altogether.

RESPONSE: The Commission agrees in part. Subsection (f) was changed to allow health care providers to submit medical bills by facsimile or electronic transmission when mutually agreed upon between the health care provider and the insurance carrier. This will speed payments and reduce disputes.

Previous §134.800(e)

COMMENT: Commentors requests clarification for the deletion of subsection (d).

RESPONSE: Commentors is apparently referring to the deletion of previous subsection (e). The term "reconsideration" replaces the term "rebill" in the rules. "Reconsideration" is defined in new §133.1. The procedures for reconsideration are set out in §133.304 and §133.305. The general concepts contained in §134.800(e) are now contained in §133.304. Sections 133.1, 133.304, and 133.305 were adopted simultaneously with §134.800.

When health care providers submit bills for reconsideration, they must use only the "identical codes and charges that are on the original medical bill," and the bills must be "clearly marked 'REQUEST FOR RECONSIDERATION'"; health care providers shall submit additional codes, dates of service, and charges on a separate medical bill.

§134.801(a)

COMMENT: Commentors suggested deleting the requirement that a health care provider send information only copies of bills to insurance carriers when the employer is paying the bill.

RESPONSE: The Commission disagrees. Insurance carriers must report all medical bills, whether paid by the employer or the insurance carrier, to the Commission in order to facilitate the Commission's maintenance of a database of all medical payments, which is required by Texas Labor Code, §413.007. The "information only" copy of the bill from the health care provider is the insurance carrier's only notification of an employer's payment.

§134.801(d)

COMMENT: Commentors suggested deleting the time frames for submission of hospital bills because they are unmanageable and are not enforced.

RESPONSE: The Commission agrees. The health care provider's incentive for timely billing is early collection of reimbursement. Therefore, subsections (c), (d), and (e) have been deleted, leaving the responsibility for timely billing to the health care provider.

§134.801(f) (now Subsection (c))

COMMENT: Commentors suggested referencing the new Chapter 146 of the Texas Civil Practice and Remedies Code (adopted by HB 213) as the basis of authority for proposed subsection (f).

RESPONSE: The Commission agrees. The information suggested has been added to the preamble.

§134.801(h), (i), (j) (now Subsections (e), (f), and (g))

COMMENT: Commentors strongly supports the provisions that a health care provider must submit its own bill, except in the circumstances provided in subsections (h), (i), and (j) as proposed.

RESPONSE: The Commission agrees.

§134.802(a)

COMMENT: Commentors pointed out that the definition of "final action" does not cover half payments that may have a supplemental payment to follow as the final action.

RESPONSE: The Commission agrees. Subsection (a) has been changed to require insurance carriers to submit medical billing data to the Commission within 30 days after the insurance carrier makes payment or denies payment on a medical bill.

COMMENT: Commentors suggested replacing the phrase "after a carrier takes final action on a medical bill" with the phrase "after payment or denial." Commentors also recommended that the direction to insurance carriers to submit medical billing data to the Medical Review Division be removed.

RESPONSE: The Commission agrees. Consistency in the use of terms is important to the overall understanding of and compliance with rules and regulations. Subsection (a) has been amended to require submission of medical billing data within 30 days after the carrier, "makes payment or denies payment" and to instruct insurance carriers to submit medical billing data to the Commission instead of to the Medical Review Division. This allows the Commission the flexibility to determine the most efficient means of receiving this information and to adapt its procedure accordingly without the necessity of rulemaking action.

§134.803(a)

COMMENT: Commentors suggested changing the wording of the first sentence of subsection (a) to include payment of interest on medical bills that were processed but not paid, contending that the word "paid" implies that interest applies only to bills that are paid, not to those that are denied. Commentors also suggested that an insurance carrier should not be required to pay interest on bills that it originally denied due to insufficient documentation from the health care provider, but that the insurance carrier pays upon appeal when the health care provider supplies more documentation.

RESPONSE: The Commission disagrees. Whether an insurance carrier voluntarily makes payment or involuntarily makes payment (as the result of an order to pay) on or after the 60th day after the insurance carrier received the bill, the insurance carrier is liable for interest. Interest is reimbursement for the health care provider's loss of the use of the money to which the health care provider was entitled. If an insurance carrier processed but did not pay a bill, the health care provider's remedy is to pursue medical dispute resolution; in the event that the Division orders payment, the insurance carrier owes interest from the 60th day after the insurance carrier received the bill until the insurance carrier paid the bill.

§134.803(c)

COMMENT: Commentors recommended deleting the requirement for apportioning interest rates across quarters, suggesting that interest be fixed by the date of the Commission order, or, absent an order, by the date the interest is paid.

RESPONSE: The Commission agrees. Subsection (c) has been amended to be consistent with §126.12 of this title (relating to Payment of Interest on Accrued but Unpaid Income Benefits). The interest rate will be fixed by the rate in effect on the date the payment is made.

Subchapter A. MEDICAL POLICIES