28 TAC §§21.3101 - 21.3105
The Texas Department of Insurance proposes new Subchapter
W, §§21.3101 - 21.3105, concerning coverage for acquired brain injury.
These new sections are necessary to implement the provisions of Insurance
Code Article 21.53Q, as added by Acts 2001, 77th Texas Legislature, in House
Bill (HB) 1676, relating to health benefit plan coverage for certain benefits
related to acquired brain injury. The proposed sections prohibit issuers of
health benefit plans from excluding certain services necessary as a result
of and related to an acquired brain injury. The proposed sections also implement
a statutory training requirement in Article 21.53Q, §3 which requires
training of personnel responsible for preauthorization of coverage or utilization
review under the plan to prevent wrongful denial of coverage required under
the article and to avoid confusion of medical benefits with mental health
benefits.
Proposed §21.3101 sets forth general provisions such as the purpose
of this subchapter, and provisions addressing severability and applicability.
Proposed §21.3102 sets forth various definitions related to acquired
brain injury, and includes definitions for various therapies and services
enumerated in Article 21.53Q, §2(a). Proposed §21.3103 prohibits
issuers of health benefit plans from excluding coverage for certain services
necessary as a result of and related to an acquired brain injury. The proposed
section also sets forth what limits or standard coverage provisions may be
placed on coverage for services for acquired brain injury. The proposed section
addresses items including, but not limited to, the deductibles, copayments,
or limits for experimental therapies or services or exclusions that may be
applied to services for coverage for acquired brain injury under a health
benefit plan. Proposed §21.3104 sets forth the statutorily required training
requirements as described in Article 21.53Q, §3. The proposed section
addresses development of written preauthorization and utilization review policies
and procedures for the purpose of identifying services to be covered for acquired
brain injury. The proposed new section also sets forth the minimum training
requirements for employees or staff responsible for preauthorization of coverage
or utilization review, or any individual performing these processes, and addresses
the means by which the training requirement under the regulations may be satisfied,
including documentation and verification of such training. Proposed new §21.3105
addresses the provision of CPT codes and is necessary to enable the department
to comply with the requirements of Section 2 of HB 1676.
The department will consider the adoption of the proposed new sections
in a public hearing under Docket Number 2521, scheduled for 9:30 a.m., on
June 18, 2002, in Room 100 of the William P. Hobby, Jr. State Office Building,
333 Guadalupe Street, Austin, Texas.
Kimberly Stokes, Senior Associate Commissioner, Life, Health & Licensing,
has determined that for each year of the first five years the proposed sections
will be in effect, there will be no fiscal impact to state and local governments
as a result of the enforcement or administration of the rule. There will be
no measurable effect on local employment or the local economy as a result
of the proposal.
Ms. Stokes has also determined that for each year of the first five years
the proposed sections are in effect, the public benefits anticipated as a
result of the proposed sections will be increased access to services for testing,
therapy, and rehabilitation for persons with acquired brain injury to allow
these persons to lead meaningful lives with the aid of modern healthcare and
rehabilitation services. In general, the anticipated economic costs to persons
required to comply with the sections are the result of the legislative enactment
of Insurance Code Article 21.53Q, and are not the result of the adoption,
enforcement, or administration of the proposed new sections. The anticipated
economic costs for persons required to identify all current Common Procedural
Terminology (CPT) codes associated with services for acquired brain injury,
as required by §21.3104(b), will depend upon how the compilation of CPT
codes is accomplished. The department's cost estimate recognizes that, in
order to comply with the requirements of §21.3104(b), it is most likely
that a registered nurse will be assigned to review claim data for patients
with acquired brain injury, including a review of coding manuals, to compile
a list of the codes utilized for services required by these proposed sections,
in particular §21.3103(a). To maintain an updated and current CPT code
list, this process would need to be repeated at regular intervals. The department
estimates that the anticipated costs will be between $22.00 - $25.00 per hour
of labor, and that it will take approximately 10 hours for one registered
nurse to compile the list of CPT codes. It is also anticipated that a nurse
performing this task will require the aid of clerical staff such as a general
file clerk or office clerk paid at an approximate hourly rate of $9.50, or
by a bookkeeping, accounting, or auditing clerk paid at an approximate hourly
rate of $13.00. These labor figures are based upon Texas Workforce Commission
Occupational Employment Statistics for 2001 (produced in cooperation with
the Bureau of Labor Statistics), with figures adjusted by the department for
the year 2002. Paper and printing costs are estimated at $.05 - $.10 per page
of information using both the front and back of a page. The department believes
that once the list is compiled by a nurse, it will be reviewed and approved
by a physician. The anticipated costs for physician review and approval will
be between $53.00 - $75.00 per hour of labor, and that it will take approximately
two hours for one physician to review and approve the compiled list of CPT
codes. These labor figures are based upon Texas Workforce Commission Occupational
Employment Statistics for 2001, and are based upon the figures provided for
internists, family practice physicians, and psychiatrists. The figures have
been adjusted by the department for the year 2002.
The anticipated economic costs to persons required to train personnel responsible
for preauthorization of coverage or utilization review are the result of the
legislative enactment of Insurance Code Article 21.53Q, §3(b) and are
not the result of the adoption, enforcement, or administration of the proposed
new sections. The anticipated economic costs to persons required to document
and verify training, as required by §21.3104(d), will vary depending
upon the method by which documentation and verification of training is accomplished.
In most instances, the department believes that training will be conducted
at an orientation session at which the person attending the training will
add his or her name and/or signature to a sign-in sheet to verify that he
or she has attended the orientation, or will complete a short separate form
to verify his or her attendance. This information could be placed in the attendee's
personnel file to document and verify that the person received the required
training, or could be maintained in a master list. The department estimates
that labor to document and verify training, including providing it upon request
to an issuer of a health benefit plan, or to the department, could be handled
by clerical staff such as a general file clerk or office clerk paid at an
approximate hourly rate of $9.50, or by a bookkeeping, accounting, or auditing
clerk paid at an approximate hourly rate of $13.00. These labor figures are
based upon Texas Workforce Commission Occupational Employment Statistics for
2001 (produced in cooperation with the Bureau of Labor Statistics), with figures
adjusted by the department for the year 2002. Paper and printing costs are
estimated at $.05 - $.10 per page of information using both the front and
back of a page. The department's cost estimate to comply with the requirement
to provide the information to an issuer of a health benefit plan, or to the
department, depends upon how the information is provided (i.e., via fax, United
States mail, hand-delivery, or other means), and the amount of information
submitted to the department in a single correspondence. The department estimates
that, at the most, it would take 15 minutes for a clerical staff person to
prepare information for transmission, whether by mail, fax, or otherwise.
The department envisions that in most, if not all instances, verification
of training will be submitted to the issuer of a health benefit plan or to
the department via U.S. mail. The department estimates that costs to provide
the information is approximately $.40 per page of information sent via U.S.
Mail. This estimate recognizes that it is possible that more than one page
can be sent in a single envelope or packet, and that the cost incurred will
depend upon the U.S. Postal Service's applied rate based on the size and weight
of the package. The department notes, however, that the proposed sections
do not require the information to be provided in any particular format. Therefore,
persons required to comply with the requirements of §21.3104(d) have
the option to greatly reduce costs by transmitting the information via facsimile,
by submitting a 3.5" computer floppy disk, or via email. The department estimates
that the cost to mail one 3.5" computer floppy disk is $8.00. This estimate
includes costs for the diskette, preparation and transmittal of a cover letter,
and postage costs. The department estimates that the cost to send one page
of information via facsimile will vary depending upon the location of the
health plan. A person sending a fax via local phone call with no long distance
charges will likely incur no costs for the phone call. A person faxing via
long distance phone call will likely incur costs between $.10 - $1.00 per
minute of fax time for the phone call. This cost estimate depends upon the
rate paid for long distance phone calls. The department estimates that the
costs associated with transmitting the verification of training via email
is the cost of labor of 15 minutes of clerical support time to transmit the
required documentation.
The costs per hour of labor and the costs for identification of CPT codes,
verification and documentation of training, and paper and mailing costs to
provide training information to the issuer of a health benefit plan or to
the department upon request, will not vary between the smallest and largest
businesses, assuming that issuers of health benefit plans, utilization review
agents, or other persons required to comply with these sections, and which
qualify as small or micro businesses, take the same or similar amount of time
to identify CPT codes, and train approximately the same percentage of staff
responsible for preauthorization of coverage or utilization review. There
is no anticipated difference between the costs of personnel necessary to identify
CPT codes, or to document and verify training for micro, small, or large issuers
of health benefit plans, utilization review agents, or other persons required
to comply with these sections since the cost is proportionate to the amount
of time it takes a registered nurse to identify current CPT codes for acquired
brain injury, and the time it takes a physician to review and approve a compiled
list of CPT codes, and since the percentage of personnel trained and the time
required by clerical staff to document and verify required training is also
proportionate. Therefore, it is the department's position that the adoption
of these proposed sections will have no adverse effect on small or micro businesses.
Regardless of the fiscal effect, the department does not believe it is legal
or feasible to reduce or waive the requirement for small or micro businesses,
as to do so would result in a disparate effect on enrollees or other persons
with acquired brain injury protected by Article 21.53Q and these proposed
sections.
To be considered, written comments on the proposal must be submitted no
later than 5:00 p.m. on Monday, June 10, 2002 to Lynda H. Nesenholtz, General
Counsel and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance,
P. O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comment
must be simultaneously submitted to Ms. Margaret Lazaretti, Mail Code 107-2A,
Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104.
The new sections are proposed under Insurance Code Article 21.53Q
and §36.001. Article 21.53Q provides that the commissioner shall adopt
rules as necessary to implement the article. Article 21.53Q also requires
the commissioner by rule to require the issuer of a health benefit plan to
provide adequate training to personnel responsible for preauthorization of
coverage or utilization review under the plan in order to prevent wrongful
denial of coverage required under the article and to avoid confusion of medical
benefits with mental health benefits. Section 36.001 provides that the Commissioner
of Insurance may adopt rules to execute the duties and functions of the Texas
Department of Insurance as authorized by statute.
The following articles are affected by this proposal: Insurance Code Article
21.53Q
§21.3101.General Provisions.
(a)
Purpose. The purpose of this subchapter is to:
(1)
ensure that enrollees in health benefit plans receive coverage
for certain services for acquired brain injury and to facilitate the recovery
and progressive rehabilitation of survivors of acquired brain injuries to
the extent possible to their pre-injury condition by making available therapies
that are medically necessary, clinically proven, goal-oriented, efficacious,
based on individualized treatment plans, and provided or ordered by a licensed
healthcare practitioner with the goal of returning the individual to, or maintaining
the individual in, the most integrated living environment;
(2)
ensure that an issuer provides coverage for services related
to an acquired brain injury under the medical/surgical provisions of the health
benefit plan;
(3)
require the issuer of a health benefit plan to provide
adequate training of individuals responsible for preauthorization of coverage
or utilization review under the plan in order to prevent wrongful denial of
coverage required under Article 21.53Q and this subchapter, and to avoid confusion
of medical/surgical benefits with mental/behavioral health benefits; and
(4)
gather information to allow the department to cooperate
with, and to assist, the Sunset Advisory Commission in determining to what
extent the coverage required by Article 21.53Q and this subchapter is being
used by enrollees in health benefit plans to which the article and this subchapter
apply, and to determine the impact of the required coverage on the cost of
those health benefit plans.
(b)
Severability. If a court of competent jurisdiction holds
that any provision of this subchapter is inconsistent with any statutes of
this state, is unconstitutional, or for any other reason is invalid, the remaining
provisions shall remain in full effect. If a court of competent jurisdiction
holds that the application of any provision of this subchapter to particular
persons, or in particular circumstances, is inconsistent with any statutes
of this state, is unconstitutional, or for any other reason is invalid, the
provision shall remain in full effect as to other persons or circumstances.
(c)
Applicability.
(1)
These sections apply to all health benefit plans delivered,
issued for delivery, or renewed on or after January 1, 2002.
(2)
Nothing in this subchapter requires the issuer of a health
benefit plan to provide coverage for services that are not medically necessary,
clinically proven, goal-oriented, efficacious, based on an individualized
treatment plan, or provided or ordered by a licensed healthcare practitioner.
§21.3102.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise:
(1)
Acquired brain injury -- A neurological insult to the brain,
which is not hereditary, congenital, or degenerative. The injury to the brain
has occurred after birth and results in a change in neuronal activity, which
results in an impairment of physical functioning, sensory processing, cognition,
or psychosocial behavior.
(2)
Cognitive communication therapy -- Services designed to
address all modalities of comprehension and expression, including understanding,
reading, writing, and verbal expression of information.
(3)
Cognitive rehabilitation therapy -- Services designed to
address therapeutic cognitive activities, based on an assessment and understanding
of the individual's brain-behavioral deficits.
(4)
Community reintegration services -- Services that facilitate
the continuum of care as an affected individual transitions into the community.
(5)
Enrollee -- A person covered by a health benefit plan.
(6)
Health benefit plan -- As described in Insurance Code Article
21.53Q, §1.
(7)
Issuer -- Those entities identified in Article 21.53Q, §1(a)(1)
- (9).
(8)
Neurobehavioral testing -- An evaluation of the history
of neurological and psychiatric difficulty, current symptoms, current mental
status, and premorbid history, including the identification of problematic
behavior and the relationship between behavior and the variables that control
behavior. This may include interviews of the individual, family, or others.
(9)
Neurobehavioral treatment -- Interventions that focus on
behavior and the variables that control behavior.
(10)
Neurocognitive rehabilitation -- Services designed to
assist cognitively impaired individuals to compensate for deficits in cognitive
functioning by rebuilding cognitive skills and/or developing compensatory
strategies and techniques.
(11)
Neurocognitive therapy -- Services designed to address
neurological deficits in informational processing and to facilitate the development
of higher level cognitive abilities.
(12)
Neurofeedback therapy -- Services that utilize operant
conditioning learning procedure based on electroencephalography (EEG) parameters,
and which are designed to result in improved mental performance and behavior,
and stabilized mood.
(13)
Neurophysiological testing -- An evaluation of the functions
of the nervous system.
(14)
Neurophysiological treatment -- Interventions that focus
on the functions of the nervous system.
(15)
Neuropsychological testing -- The administering of a comprehensive
battery of tests to evaluate neurocognitive, behavioral, and emotional strengths
and weaknesses and their relationship to normal and abnormal central nervous
system functioning.
(16)
Neuropsychological treatment -- Interventions designed
to improve or minimize deficits in behavioral and cognitive processes.
(17)
Other similar coverage -- The medical/surgical benefits
provided under a health benefit plan. This term recognizes a distinction between
medical/surgical benefits, which encompass benefits for physical illnesses
or injuries, as opposed to benefits for mental/behavioral health under a health
benefit plan.
(18)
Post-acute transition services -- Services that facilitate
the continuum of care beyond the initial neurological insult through rehabilitation
and community reintegration.
(19)
Psychophysiological testing -- An evaluation of the interrelationships
between the nervous system and other bodily organs and behavior.
(20)
Psychophysiological treatment -- Interventions designed
to alleviate or decrease abnormal physiological responses of the nervous system
due to behavioral or emotional factors.
(21)
Remediation -- The process(es) of restoring or improving
a specific function.
(22)
Services -- The work of testing, treatment, and providing
therapies to an individual with an acquired brain injury.
(23)
Therapy -- The scheduled remedial treatment provided through
direct interaction with the individual to improve a pathological condition
resulting from an acquired brain injury.
§21.3103.Coverage for Services.
(a)
An issuer may not exclude coverage for services for cognitive
rehabilitation therapy, cognitive communication therapy, neurocognitive therapy
and rehabilitation, neurobehavioral, neurophysiological, neuropsychological,
and psychophysiological testing or treatment, neurofeedback therapy, remediation,
post-acute transition services or community reintegration services, if such
services are necessary as a result of and related to an acquired brain injury.
(b)
For purposes of Insurance Code Article 21.53Q, §2
and subsection (a) of this section, the word "necessary" means "medically
necessary."
(c)
Treatment goals for services required by subsection (a)
of this section may include the maintenance of functioning or the prevention
of or slowing of further deterioration.
(d)
The coverage for services required by subsection (a) of
this section may be subject to the deductibles, copayments, coinsurance, or
annual or maximum payment limits that are consistent with deductibles, copayments,
coinsurance, and annual or maximum payment limits applicable to other similar
coverage under the health benefit plan.
(e)
The coverage for services required by subsection (a) of
this section may be subject to limitations and exclusions that are generally
applicable to other physical illnesses or injuries under the health benefit
plan. These types of exclusions or limitations include, but are not limited
to, limitations or exclusions for services that may be limited or excluded
because they are solely educational in nature, experimental or investigational,
not medically necessary, or services for which the enrollee failed to obtain
proper preauthorization under the requirements of the health benefit plan.
(f)
The types of limitations or exclusions permitted under
subsection (d) of this section do not include limitations or exclusions under
a health benefit plan which, in and of themselves, meet the definition of
a therapy or service required under subsection (a) of this section. For example,
if a health benefit plan contains an exclusion for biofeedback therapy, the
issuer may deny coverage for biofeedback therapy for any diagnosis except
an acquired brain injury diagnosis because biofeedback falls within the definition
of "neurofeedback" as defined in §21.3102(12) of this subchapter (relating
to Definitions), and for which coverage is required under subsection (a) of
this section. However, if the same health benefit plan also contains an exclusion
for services that are not authorized prior to service, the issuer may, as
allowed by subsection (e) of this subsection, deny coverage based upon the
prior authorization exclusion.
(g)
An issuer may deny coverage and/or apply a limitation or
exclusion in a health benefit plan for a service listed in subsection (a)
of this section if the service is prescribed for a condition that, although
a result of, or related to, an acquired brain injury, was sustained in an
activity or occurrence for which other similar coverage under the health benefit
plan is limited or excluded (e.g., acts of war, participation in a riot, etc.).
§21.3104.Training.
(a)
In this section, "preauthorization" has the meaning assigned
by Insurance Code Article 21.53Q, and includes benefit determinations for
proposed medical or health care services.
(b)
Each issuer shall develop written preauthorization and
utilization review policies and procedures for the purpose of identifying
services to be covered for acquired brain injury to be utilized by any individual
responsible for preauthorization of coverage or utilization review. Such policies
and procedures shall include:
(1)
identification of all current Common Procedural Terminology
(CPT) codes associated with services for acquired brain injury; and
(2)
a means to identify an enrollee initially diagnosed with
an acquired brain injury.
(c)
Each issuer shall ensure that all employees or staff responsible
for preauthorization of coverage or utilization review, or any individual
performing these processes, receive training to prevent wrongful denial of
coverage required under Article 21.53Q and this subchapter, and to avoid confusion
of medical/surgical benefits with mental/behavioral health benefits. At a
minimum, training shall consist of:
(1)
identification of services likely to be requested in treating
an enrollee with an acquired brain injury;
(2)
identification of specific therapies currently used in
treating an enrollee with an acquired brain injury;
(3)
instruction relating to correctly evaluating requests for
services to differentiate between covered medical/surgical benefits versus
covered benefits for mental/behavioral health;
(4)
instruction relating to the requirements of Article 21.53Q
and this subchapter.
(d)
At a minimum, training shall be accomplished by attendance
at an initial orientation, inservice, or continuing education program relating
to acquired brain injuries and their treatments, provided that such training
shall be consistent with the requirements of subsections (a) and (b) of this
section.
(1)
Documentation and verification of training shall be maintained
for each employee or staff member responsible for preauthorization of coverage,
utilization review, or any individual performing these processes.
(2)
Upon request, any documentation and verification required
by paragraph (1) of this subsection shall be provided to the issuer with whom
the employee, staff member, or individual is employed or contracted.
(3)
Upon request, any documentation and verification required
by paragraph (1) of this subsection shall be provided to the department for
review.
(e)
The requirements of this section shall also apply to any
contracted entity of an issuer to the extent the contracted entity is responsible
for preauthorization, or utilization review.
§21.3105.Provision of CPT Codes.
Each issuer of a health benefit plan subject to Insurance Code Article
21.53Q and this subchapter shall, upon request from the department, submit
to the department the list of CPT codes identified by the issuer pursuant
to §21.3104(b)(1) of this subchapter (relating to Training).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on April 29, 2002.
TRD-200202634
Lynda Nesenholtz
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: June 9, 2002
For further information, please call: (512) 463-6327