28 TAC §134.800, §134.802
The Texas Workers' Compensation Commission (the commission)
adopts amendments to §134.800 and §134.802, with changes to the
proposed text published in the March 5, 2004, issue of the
Texas Register
(29 TexReg 2202).
As required by the Government Code §2001.033(1), the commission's
reasoned justification for these rules are set out in this order which includes
the preamble, which in turn includes the rules. This preamble contains a summary
of the factual basis of the rules, 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 rules, and the reasons why the commission
disagrees with some of the comments and recommendations.
Rule 134.800 is amended with respect to the forms that should be used by
health care providers when submitting medical bills for payment. This rule
currently specifies the forms that must be used by health care providers when
billing for medical services provided to injured employees. In compliance
with statutory provisions, the amendments achieve standardization with Centers
for Medicare and Medicaid Services (CMS) policies, as directed by the Texas
Labor Code §413.011, certain subsections of the rule are amended to state
that bills are to be submitted on forms consistent with current CMS requirements.
The amended rule requires the use of billing forms that have a well-known,
standardized structure that is more consistent with national health care billing
standards for the delivery of quality medical care. This will provide greater
administrative efficiencies to system participants, including the commission,
by reducing multiple reporting requirements. Many healthcare providers are
already billing on CMS-required forms, either in the workers' compensation
setting or otherwise, and therefore, this rule will streamline business practices
for system participants.
Subsection 134.800(g) is changed from proposal by providing for an effective
date of September 1, 2004. The change in effective date from the proposed
date of June 1, 2004 is to allow system participants sufficient time to prepare
for the change in billing forms. Amended 134.800 does not require health care
providers to file billing data that they are not currently required to file;
it merely requires a different form for some types of services.
Rule 134.802 is amended to require insurance carriers to file medical billing
data regarding pharmaceutical and dental benefits, which will create an improved
system for monitoring the delivery of dental and pharmaceutical health care
benefits. This in turn will allow the commission to more comprehensively and
effectively monitor and evaluate patterns of practice among system participants,
and to possibly develop pharmacy formularies. Other amendments to the rule
require insurance carriers to file data on refunds to the insurance carrier
for prior overpayments. These actions will aid the commission in its statutory
duty to regulate and contain medical costs.
The effective date for filing pharmacy and dental billing data remains
January 1, 2005, as proposed. This later effective date is allowed because
amended rule 134.802 requires insurance carriers to file data that they have
not previously been required to file with the commission.
Certain portions of these rules that are not amended at this time may be
considered for amendment at a later time. In addition, portions of these rules
may be moved to other commission rules at a later time.
The Medical Advisor reviewed and made recommendations regarding this adopted
rule.
The following groups or associations provided comments regarding the proposed
amendments:
Insurance Council of Texas supported the commission's adoption of amended
rule 134.800 but opposed adoption of amended rule 134.802.
PMSI and Texas Pharmacy Association supported the proposed amendments to
both rules.
Physiatry Reimbursement Specialists, Inc. opposed adoption of the proposed
amendments to both rules.
In addition to supporting or opposing various portions of the rules, commenters
made suggestions for improvements to the rules or asked for clarification
on certain points. Comments containing such recommendations were received
from the following groups or associations: Billings & Solomon, PLLC, and
Texas Association of School Boards.
Summaries of the comments and commission responses are as follows:
§134.800
COMMENT: Commenter stated that the proposed rule does not clarify the effect
of billing under a "differing platform" as a subclaimant under Texas Labor
Code §409.009. Commenter further asserted that the rule should clarify
that "billing under another platform as a subclaimant will not be an impediment
to prosecution of a subclaim under §409.009."
RESPONSE: The commission disagrees that the rule, itself, needs to address
whether it affects a health care provider's ability to seek reimbursement
as a subclaimant pursuant to Texas Labor Code §409.009. The rule is amended
to require the use of different billing forms than those currently required
of certain health care providers, thereby achieving greater standardization
with Centers for Medicare and Medicaid Services (CMS) policies, in conformity
with Texas Labor Code §413.011. Therefore, the amended rule should have
no effect on subclaims.
COMMENT: Commenter stated that "the proposed changes will enable providers
to better provide the necessary medical services required by injured workers,
and lessen the billing time and confusion for providers and payers alike,
thus truly streamlining the system."
RESPONSE: The Commission agrees.
COMMENT: Commenter "strongly agrees with the commission . . . statement
that the proposed changes will help providers, payers, and the commission
achieve 'standardization with CMS policies and payment guidelines'." Commenter
observed that the proposed changes will align commission billing requirements
and practices with reimbursement policies in the Medical Fee Guideline.
RESPONSE: The Commission agrees.
COMMENT: Commenter stated that the proposed changes, including changes
made to the TWCC-66 form, will create a smoother flow of information between
provider and payer, enabling pharmacy providers to quickly and properly treat
injured workers.
RESPONSE: The Commission agrees.
COMMENT: Observing that overpayment by insurance carriers is not an issue,
commenter expressed a concern that insurance carriers currently pay units
either incorrectly, partially, or without proper reasons for denial. Commenter
added that providers will never be overpaid if insurance carriers continue
to pay incorrectly.
RESPONSE: The commission disagrees with commenter's assertion that overpayments
by insurance carriers do not occur. Commission records show that in 2003 the
commission conducted refund audits of 18 health care providers for overpayments
from insurance carriers. These audits revealed $141,543 in overpayments to
health care providers by insurance carriers. Subsection (f), which has not
been amended, supports the medical billing audit process of the commission
by allowing the commission to order refunds of overpayment by the carrier
when appropriate. The commission clarifies that incorrect payments are addressed
in the Medical Dispute Resolution process (Chapter 133) and improper denial
reasons are addressed in the Monitoring and Enforcement process (Chapter 180).
COMMENT: Commenter recommends that the Commission use "HIPAA 837," stating
"it would add prohibitive costs to doctors participating in the system, requiring
them to utilize two billing systems to separately accommodate workers' compensation
and private patients."
RESPONSE: The Commission interprets this comment to advocate use of the
HIPAA billing format, rather than future implementation of the International
Association of Industrial Accident Boards and Commissions (IAIABC) billing
format anticipated by the commission in its proposal preamble. The commission
is not prepared to implement use of the HIPAA billing format. In order to
capture data elements that are unique to workers' compensation, the Commission
plans to implement the IAIABC version of the 837, as it contains specific
elements required for reporting data to the commission. System participants
were surveyed in January 2003 as to whether they would prefer that the commission
adopt the IAIABC standard version since it was being used already in other
jurisdictions, or whether they would prefer that the commission build its
own payment format, based on the Health Care Claimant Payment/Advice 835 form,
developed by National Electronic Data Interchange, with a small companion
file containing some 837 elements as this could pave the way for the eventual
evolution to full electronic medical billing processes between payers and
payees. The survey results showed a clear majority of respondents wanted the
commission to adopt the IAIABC version of the HIPAA compliant 837 format that
was already being used in other states. As stated in the proposal preamble,
as well as Advisory 2004-04, the Commission's Business Process Improvement
(BPI) initiative is currently working with electronic submission trading partners
to develop a process for the electronic submission of medical billing data.
COMMENT: Commenter supports the adoption of the proposed amendments and
states that the rule will result in standardization with CMS policies pertaining
to the submission of medical bills on forms consistent with current CMS requirements.
RESPONSE: The Commission agrees.
COMMENT: Commenter opposes the rule and states that it is ambiguous and
leaves much room for interpretation, proves meaningless, and not possible
with current technology. Commenter further opposes the rule stating that providers
would have to communicate with each and every insurance company to determine
whether or not electronic billing is accepted. Commenter also states that
it is impossible for providers to attach documentation to each claim submitted
electronically.
RESPONSE: The Commission disagrees that §134.800(e) is ambiguous.
The rule provides flexibility for providers and carriers to utilize electronic
billing technology when mutually agreed upon or use standardized paper billing
forms. This flexibility allows for the development of technological advances,
such as electronic medical record documentation, to be incorporated. The Commission
agrees that healthcare providers and insurance carriers must communicate with
each other to determine if electronic billing is possible between the two
parties. However, this should only have to occur once for each carrier, and
the commission views this communication as beneficial to all system participants,
in that it will allow for increased efficiencies and potential cost savings
within the workers' compensation system. In addition, subsection (e) does
not require health care providers to determine if an insurance carrier will
accept electronic transmission; it is wholly voluntary on the part of the
health care provider (and the insurance carrier, as well). The Commission
disagrees that this rule is meaningless, as it provides for standardization
of paper billing forms until such time that the commission outlines electronic
billing specifications to be implemented for carriers and healthcare providers.
Regarding commenter's assertion regarding the ability to attach documentation
to electronically submitted claims, the commission clarifies that any supporting
documentation that cannot be submitted electronically should be provided to
the carrier in paper format, either by facsimile, mail, or hand delivery.
COMMENT: Commenter recommends that subsection (e) of the rule be further
amended to allow the submission of claims by electronic means (or fax) and
payment timeframes of 14 days for electronic and 27 days for faxed or mailed
submissions.
RESPONSE: The commission disagrees with the commenters suggested language
and clarifies that the amended rule does not address payment timeframes, which
are governed by the statute and other rules; instead, it provides for standardization
of paper billing forms with an allowance for mutually agreed upon electronic
bill submission until such time that the commission outlines electronic billing
specifications. Although Section 408.027 (a) of the Texas Labor Code states,
"An insurance carrier shall pay the fee allowed under Section 413.011 for
a service rendered by a health care provider not later than the 45th day after
the date the insurance carrier receives the charge unless the amount of the
payment or the entitlement to payment is disputed," a carrier is not prohibited
from paying a bill sooner.
COMMENT: Commenter recommends that subsection (e) be changed to require
payment of interest by carriers starting on the 31st day after receipt of
"clean electronic and paper claims no later than 30 days after receipt of
the claim."
RESPONSE: The commission disagrees with the recommendation for the insurance
carrier to pay interest on the 31st day, because this would be contrary to
Texas Labor Code §413.019(a), which states, "Interest on an unpaid fee
or charge that is consistent with the fee guidelines accrues at the rate provided
by Section 401.023 beginning on the 60th day after the date the health care
provider submits the bill to an insurance carrier until the date the bill
is paid."
COMMENT: Commenter recommends that providers be required, in all instances,
to submit certain types of claims in paper format, asserting that these claims
require supporting documentation and, therefore, would not be appropriately
submitted in electronic format. The claims identified by commenter relate
to: Impairment Ratings, Independent Medical Evaluations, Maximum Medical Improvement
Determinations, Required Medical Evaluations, Work Status Reports, Second
Opinions, Functional Capacity Evaluations, and Initial Evaluations by all
Providers.
RESPONSE: The documentation requirement concerns raised by commenter are
addressed in other commission rules, not rules 134.800 and 134.802 and, therefore,
are not the subject of this rule action. However, the Commission disagrees
that providers should be prohibited from submitting certain types of claims
electronically. Although supporting documentation for the services identified
by commenter may need to be provided to the carrier in paper format, this
would not prevent the provider from submitting a bill electronically. Any
supporting documentation that cannot be submitted electronically should be
provided to the carrier in paper format, either by facsimile, mail, or hand
delivery.
COMMENT: Commenter recommends that carriers be required to pay claims up
front and review them at a later date if discrepancies arise, and that providers
be required to submit refunds if it is later determined that a provider was
overpaid. Commenter asserted that a carrier should, upon receipt of a provider's
claim, be able to request documentation from the provider to determine whether
services billed were provided, and request a refund from the provider if documentation
does not indicate that those services were, in fact, provided.
RESPONSE: Commenter's recommendation relates to reimbursement policies
and retrospective review, neither of which is addressed by §134.800.
These issues are addressed in commission rule 133.1(a)(3), which defines the
term, "complete medical bill," and in commission rule 133.301, which provides
for the circumstances in which retrospective review of medical bills is allowed.
The commission disagrees with commenter's assertion, however, that carriers
should be required to pay claims up front and review them later to determine
whether there is a basis for seeking a refund for overpayment to a provider.
This would be inconsistent with Texas Labor Code §408.027(a), which states,
"An insurance carrier shall pay the fee allowed under Section 413.011 for
a service rendered by a health care provider not later than the 45th day after
the date the insurance carrier receives the charge
unless the amount of the payment or the entitlement to payment is disputed.
" The statute contemplates that carriers should be permitted to review
each bill and its supporting documentation to determine if there is reason
to dispute the bill before paying the provider. Moreover, the commenter's
recommendation would not be appropriate due to the additional considerations
of compensability and extent of injury within the Texas workers' compensation
system.
COMMENT: Commenter indicated support for the rule and believes the system
will benefit from the ability to consider the additional data that will be
provided to the commission regarding pharmaceutical health care benefits.
Commenter indicated that the data will allow pharmacists to better format
or structure what the pharmaceutical benefits should be like, and questions
of medical necessity and treatment patterns would be obviated.
RESPONSE: The Commission agrees.
COMMENT: Commenter is in favor of electronic filing, stating that it is
a standard format, it is a simple process, and it saves money for providers
and carriers. Commenter observed, further, that all carriers that have implemented
the CMS billing system have the capability of accepting Electronic Filing
as part of the software. In order to entice providers to return to or stay
in the workers' compensation system, commenter recommends that the commission
make the system easier and faster.
RESPONSE: The commission agrees that utilizing electronic bill submission
provides benefits to all system participants. In subsection (e) of the adopted
rule, the commission continues to provide for mutually agreed upon electronic
bill submissions. However, the commission also clarifies that this rule provides
for standardization of paper billing forms until the commission outlines electronic
billing specifications. Currently, as stated in Advisory 2004-04, the commission,
through its Business Process Improvement (BPI) initiative, is working with
electronic submission trading partners to develop a process for the electronic
submission of medical billing data. The Commission is identifying options
for adoption of full electronic billing from the health care providers to
the insurance carriers and to the Commission. These automated tools allow
for fewer disputes over billing and much shorter payment timeframes. The improved
billing system may encourage more doctors to participate in the Texas workers'
compensation system. In the Medicare system, the Centers for Medicare and
Medicaid Services (CMS) contracts with two intermediaries to process bills.
These two carriers specialize in Medicare payment policies and have software
programs that are specifically designed and maintained using the most up to
date Medicare policies. But in the Texas workers' compensation system, there
are over 250 workers' compensation carriers, and additional bill review entities
under contract with the carriers, that need to be taken into consideration
while determining how to incorporate electronic billing into the workers'
compensation system. Furthermore, the need for documentation on whether the
medical care being billed for is related to a compensable injury adds additional
complication to the use of electronic billing in a workers' compensation environment.
§134.802
COMMENT: Commenter supported the changes, as it will allow the commission
to better track and understand the true nature of workers' compensation pharmacy.
Commenter observed that the commission will be able to gain first hand knowledge
of the pharmacy process from the acceptance of the claim, to dispensing of
medications, to billing and eventual payment by the carrier or payer. Commenter
stated that the proposed changes will also permit the commission to gain a
better understanding of the medical costs attributed to the workers' compensation
system.
RESPONSE: The Commission agrees.
COMMENT: Commenter supports the amendments to §134.802, stating they
do not believe the amended rules will cause any additional financial or billing
burden for payers and providers, including pharmacy providers.
RESPONSE: The Commission agrees.
COMMENT: Commenter states overpayment is not an issue; has concern that
currently insurance carriers do not pay units correctly or with the proper
denial reasons.
RESPONSE: The commission disagrees with commenter's assertion that overpayments
by insurance carriers do not occur. Commission records show that in 2003 the
commission conducted refund audits of 18 health care providers for overpayments
from insurance carriers. These audits revealed $141,543 in overpayments to
health care providers by insurance carriers. Subsection (f), which has not
been amended, supports the medical billing audit process of the commission
by allowing the commission to order refunds of overpayment by the carrier
when appropriate. The commission clarifies that incorrect payments are addressed
in the Medical Dispute Resolution process (Chapter 133) and improper denial
reasons are addressed in the Monitoring and Enforcement process (Chapter 180).
COMMENT: Commenter recommends that the Commission should use the HIPAA
837.
RESPONSE: The Commission interprets this comment to advocate use of the
HIPAA billing format, rather than future implementation of the International
Association of Industrial Accident Boards and Commissions (IAIABC) billing
format anticipated by the commission in its proposal preamble. The commission
is not prepared to implement use of the HIPAA billing format. In order to
capture data elements that are unique to workers' compensation, the Commission
plans to implement the IAIABC version of the 837, as it contains specific
elements required for reporting data to the commission. System participants
were surveyed in January 2003 as to whether they would prefer that the commission
adopt the IAIABC standard version since it was being used already in other
jurisdictions, or whether they would prefer that the commission build its
own payment format, based on the Health Care Claimant Payment/Advice 835 form,
developed by National Electronic Data Interchange, with a small companion
file containing some 837 elements as this could pave the way for the eventual
evolution to full electronic medical billing processes between payers and
payees. The survey results showed a clear majority of respondents wanted the
commission to adopt the IAIABC version of the HIPAA compliant 837 format that
was already being used in other states. As stated in the proposal preamble,
as well as Advisory 2004-04, the Commission's Business Process Improvement
(BPI) initiative is currently working with electronic submission trading partners
to develop a process for the electronic submission of medical billing data.
COMMENT: Commenter recommends that the Commission improve the insurance
carrier data collection process by specifying/identifying the required data
elements and format, stating the rule does not provide enough specificity.
In addition, commenter recommends that, if the commission anticipates adding
any reporting requirements that are unique to the Texas workers' compensation
system, the commission should keep them limited and provide an opportunity
for public comment before they are implemented.
RESPONSE: The commission clarifies that the commission-specific Electronic
Claim Submission (ECS) record layout specifications and edits required for
insurance carriers to report medical billing information are posted on the
commission website rather than in any of its rules. This allows for expedited
ECS changes without formal rule proposal and adoption process. In order to
capture data elements that are unique to workers' compensation, the Commission
plans to implement the IAIABC version of the 837, as it contains specific
elements required for reporting data to the commission. In addition, there
may be data elements that are unique to Texas workers' compensation such as
pharmacy data. For example, the commission may add a data element to capture
data reflecting the amount an injured employee paid to "upgrade" to a brand
name drug, in accordance with the statute and commission rule 134.504, relating
to Pharmaceutical Expenses Incurred by the Injured Employee.
COMMENT: Commenter recommends that the Commission allow for a process of
public comment when changes are proposed to the data elements or tweaking
to the forms.
RESPONSE: The commission agrees that there is benefit from receiving informal
comments to data element requirements and changes to forms that are not in
the formal rule making process. The commission has on several occasions invited
public involvement in these decisions. For example, in the fall of 2003, through
the Business Process Improvement efforts, as outlined in the August 2003 BPI
newsletter, the commission requested public comments on the electronic data
exchange elements prior to a final version of the IAIABC 837 implementation
guides was published. In addition, other medical forms, such as the TWCC-67
(Instructions for completing the CMS-1500) have had technical users from the
public involved prior to changes made.
COMMENT: Commenter recommends that more work is required on the rule to
ensure a smoother transition to the new data reporting requirements.
RESPONSE: The Commission disagrees that this rule will not allow for a
smooth transition to the new data reporting requirements. The rule as adopted,
provides for standard paper billing forms until the commission outlines electronic
billing specifications for carriers and healthcare providers.
COMMENT: Commenter supports the rule, stating that the system will benefit
from the ability to consider data and information on pharmaceutical health
care benefits.
RESPONSE: The Commission agrees.
STATUTORY AUTHORITY These amendments are adopted pursuant to
Texas Labor Code §402.042, which authorizes the Executive Director to
enter orders as authorized by the statute as well as to prescribe the form
and manner and procedure for transmission of information to the commission;
Texas Labor Code §402.061, which authorizes the commission to adopt rules
necessary to administer the Act; Texas Labor Code §406.010, which authorizes
the commission to adopt rules necessary to specify the requirements for carriers
to provide claims service and establishes that a person commits a violation
if the person violates a rule adopted under this section; Texas Labor Code §408.021(a),
which provides that an employee who sustains a compensable injury is entitled
to all health care reasonably required by the nature of the injury as and
when needed; Texas Labor Code §408.025, which requires the commission
to specify by rule what reports a health care provider is required to file;
Texas Labor Code §408.028, which requires health care practitioners providing
care to an employee to prescribe any necessary prescription drugs in accordance
with applicable state law; Texas Labor Code §413.011, which requires
the commission to adopt the most current reimbursement methodologies, models,
and values or weights used by the federal Health Care Financing Administration
(now know as the Centers for Medicare and Medicaid Services), including applicable
payment policies relating to coding, billing, and reporting, and may modify
documentation requirements as necessary to meet other statutory requirements;
and Texas Labor Code §413.053, which requires the commission to establish
standards of reporting and billing governing both form and content.
These amended rules are adopted under: Texas Labor Code §402.042, §402.061, §406.010, §408.021(a), §408.025, §408.028, §413.011,
and §413.053.
CROSS REFERENCE TO STATUTE
The previously cited sections of the Texas Labor Code are affected by this
rule action. No other code, statute, or article is affected by this rule action.
§134.800.Required Billing Forms and Information.
(a)
Except as provided by §134.801 of this title (relating
to Submitting Medical Bills for Payment), health care providers shall submit
medical bills for payment on standard forms used by the Centers for Medicare
and Medicaid Services (CMS) or applicable forms prescribed in subsections
(b) and (c), completed in accordance with Commission instructions. All information
on medical bills shall be legible when submitted.
(b)
Except as provided in subsections (c), and (d) of this
section, all health care providers, as defined in §401.011 of the Texas
Labor Code, shall submit medical bills using national standard health insurance
claim forms, prepared according to Commission instructions.
(c)
Pharmacists shall submit bills using the Commission form
TWCC-66, Statement for Pharmacy Services, prepared according to Commission
instructions.
(d)
Dentists shall submit bills using a billing form currently
approved by the American Dental Association prepared according to Commission
instructions.
(e)
Health care providers may submit medical bills by facsimile
or electronic transmission, when mutually agreed upon between the health care
provider and the insurance carrier, unless the bill and/or supporting documentation
cannot be sent by those media, in which case the health care provider shall
send the documentation by mail or personal delivery.
(f)
The Medical Review Division may order the health care provider
to reimburse a carrier when the carrier pays the health care provider in excess
of the amount allowed by the appropriate Commission fee guideline.
(g)
This rule shall apply to all dates of service on or after
September 1, 2004.
§134.802.Insurance Carrier's Submission of Medical Bills to the Commission.
(a)
The insurance carrier shall submit medical billing data
to the Commission within 30 days after the insurance carrier makes payment,
denies payment, or receives a refund of overpayment on a medical bill.
(b)
Insurance carriers shall submit medical billing data electronically
in the form and format prescribed by the Commission.
(c)
The Commission shall prescribe the form, format, and content
of the required medical billing data submission.
(d)
This rule shall apply to all dates of service on or after
July 15, 2000, for facility and professional medical services except pharmacy
and dental services.
(e)
This rule shall apply to all dates of service on or after
January 1, 2005, for pharmacy and dental services in addition to the already
required facility and professional medical services.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 21, 2004.
TRD-200404055
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: July 11, 2004
Proposal publication date: March 5, 2004
For further information, please call: (512) 804-4287