Current through Reg. 49, No. 38; September 20, 2024
(a)
Applicability. The applicability of this section is as follows.
(1) This section applies to the independent
review of medical necessity disputes that are filed on or after June 1, 2012.
Dispute resolution requests filed prior to June 1, 2012 shall be resolved in
accordance with the statutes and rules in effect at the time the request was
filed.
(2) When applicable,
retrospective medical necessity disputes shall be governed by the provisions of
Labor Code §
413.031(n)
and related rules.
(3) All
independent review organizations (IROs) performing reviews of health care under
the Labor Code and Insurance Code, regardless of where the independent review
activities are located, shall comply with this section. The Insurance Code, the
Labor Code and related rules govern the independent review process.
(b) IRO Certification. Each IRO
performing independent review of health care provided in the workers'
compensation system shall be certified pursuant to Insurance Code Chapter 4202
and Chapter 12 of this title (relating to Independent Review
Organizations).
(c) Professional
licensing requirements. Notwithstanding Insurance Code Chapter 4202, an IRO
that uses doctors to perform reviews of health care services provided under
this section may only use doctors licensed to practice in Texas that hold the
appropriate credentials under Chapter 180 of this title (relating to Monitoring
and Enforcement). Personnel employed by or under contract with the IRO to
perform independent review shall also comply with the personnel and
credentialing requirements under Chapter 12 of this title.
(d) Conflicts. Conflicts of interest will be
reviewed by the department consistent with the provisions of the Insurance Code
§
4202.008,
Labor Code §
413.032(b),
§§
12.203,
12.204,
and
12.206
of this title (relating to Conflicts of Interest Prohibited, Prohibitions of
Certain Activities and Relationships of Independent Review Organizations and
Individuals or Entities Associated with Independent Review Organizations, and
Notice of Determinations Made by Independent Review Organizations,
respectively), and any other related rules. Notification of each IRO decision
must include a certification by the IRO that the reviewing health care provider
has certified that no known conflicts of interest exist between that health
care provider and the injured employee, the injured employee's employer, the
insurance carrier, the utilization review agent, any of the treating health
care providers, or any of the health care providers utilized by the insurance
carrier to review the case for determination prior to referral to the
IRO.
(e) Monitoring. The division
will monitor IROs under Labor Code §§
413.002,
413.0511, and
413.0512.
The division shall report the results of the monitoring of IROs to the
department on at least a quarterly basis. The division will make inquiries,
conduct audits, receive and investigate complaints, and take all actions
permitted by the Labor Code and other applicable law against an IRO or
personnel employed by or under contract with an IRO to perform independent
review to determine compliance with applicable law, this section, and other
applicable division rules.
(f)
Requestors. The following parties may be requestors in medical necessity
disputes:
(1) In network disputes:
(A) health care providers, or qualified
pharmacy processing agents acting on behalf of a pharmacy, as described in
Labor Code §
413.0111, for
preauthorization, concurrent, and retrospective medical necessity dispute
resolution;
(B) injured employees
or a person acting on behalf of an injured employee for preauthorization,
concurrent, and retrospective medical necessity dispute resolution;
and
(C) subclaimants in accordance
with §§
140.6,
140.7,
or
140.8
of this title, as applicable.
(2) In non-network disputes:
(A) health care providers, or qualified
pharmacy processing agents acting on behalf of a pharmacy, as described in
Labor Code §
413.0111, for
preauthorization, concurrent, and retrospective medical necessity dispute
resolution;
(B) injured employees
or injured employee's representative for preauthorization and concurrent
medical necessity dispute resolution; and, for retrospective medical necessity
dispute resolution when reimbursement was denied for health care paid by the
injured employee; and
(C)
subclaimants in accordance with §
140.6
of this title (relating to Subclaimant Status: Establishment, Rights, and
Procedures), §
140.7
of this title (relating to Health Care Insurer Reimbursement under Labor Code
§
409.0091),
or §
140.8
of this title (relating to Procedures for Health Care Insurers to Pursue
Reimbursement of Medical Benefits under Labor Code §
409.0091),
as applicable.
(g) Requests. A request for independent
review must be filed in the form and manner prescribed by the department. The
department's IRO request form may be obtained from:
(1) the department's website at
http://www.tdi.texas.gov/;
or
(2) the Managed Care Quality
Assurance Office, Mail Code LH-MCQA, Texas Department of Insurance, P.O. Box
12030, Austin, Texas 78711-2030.
(h) Timeliness. A requestor shall file a
request for independent review with the insurance carrier that actually issued
the adverse determination or the insurance carrier's utilization review agent
(URA) that actually issued the adverse determination no later than the 45th
calendar day after receipt of the insurance carrier's denial of an appeal. The
insurance carrier shall notify the department of a request for an independent
review within one working day from the date the request is received by the
insurance carrier or its URA. In a preauthorization or concurrent review
dispute request, an injured employee with a life-threatening condition, as
defined in §
133.305 of
this subchapter (relating to MDR--General), is entitled to an immediate review
by an IRO and is not required to comply with the procedures for an appeal to
the insurance carrier.
(i)
Dismissal. The department may dismiss a request for medical necessity dispute
resolution if:
(1) the requestor informs the
department, or the department otherwise determines, that the dispute no longer
exists;
(2) the requestor is not a
proper party to the dispute pursuant to subsection (f) of this
section;
(3) the department
determines that the dispute involving a non-life-threatening condition has not
been submitted to the insurance carrier for an appeal;
(4) the department has previously resolved
the dispute for the date(s) of health care in question;
(5) the request for dispute resolution is
untimely pursuant to subsection (h) of this section;
(6) the request for medical necessity dispute
resolution was not submitted in compliance with the provisions of this
subchapter; or
(7) the department
determines that good cause otherwise exists to dismiss the request.
(j) IRO Assignment and
Notification. The department shall review the request for IRO review, assign an
IRO, and notify the parties about the IRO assignment consistent with the
provisions of Insurance Code §
4202.002(a)(1),
§1305.355(a), Chapter 12, Subchapter F of this title (relating to Random
Assignment of Independent Review Organizations), any other related rules, and
this subchapter.
(k) Insurance
Carrier Document Submission. The insurance carrier or the insurance carrier's
URA shall submit the documentation required in paragraphs (1) - (6) of this
subsection to the IRO not later than the third working day after the date the
insurance carrier or URA receives the notice of IRO assignment. The
documentation shall include:
(1) the forms
prescribed by the department for requesting IRO review;
(2) all medical records of the injured
employee in the possession of the insurance carrier or the URA that are
relevant to the review, including any medical records used by the insurance
carrier or the URA in making the determinations to be reviewed by the
IRO;
(3) all documents, guidelines,
policies, protocols and criteria used by the insurance carrier or the URA in
making the decision;
(4) all
documentation and written information submitted to the insurance carrier in
support of the appeal;
(5) the
written notification of the initial adverse determination and the written
adverse determination of the appeal to the insurance carrier or the insurance
carrier's URA; and
(6) any other
information required by the department related to a request from an insurance
carrier for the assignment of an IRO.
(l) Additional Information. The IRO shall
request additional necessary information from either party or from other health
care providers whose records are relevant to the review.
(1) The party or health care providers with
relevant records shall deliver the requested information to the IRO as directed
by the IRO. If the health care provider requested to submit records is not a
party to the dispute, the insurance carrier shall reimburse copy expenses for
the requested records pursuant to §
134.120
of this title (relating to Reimbursement for Medical Documentation). Parties to
the dispute may not be reimbursed for copies of records sent to the
IRO.
(2) If the required
documentation has not been received as requested by the IRO, the IRO shall
notify the department and the department shall request the necessary
documentation.
(3) Failure to
provide the requested documentation as directed by the IRO or department may
result in enforcement action as authorized by statutes and rules.
(m) Designated Doctor Exam. In
performing a review of medical necessity, an IRO may request that the division
require an examination by a designated doctor and direct the injured employee
to attend the examination pursuant to Labor Code §
413.031(g)
and §
408.0041.
The IRO request to the division must be made no later than 10 days after the
IRO receives notification of assignment of the IRO. The treating doctor and
insurance carrier shall forward a copy of all medical records, diagnostic
reports, films, and other medical documents to the designated doctor appointed
by the division, to arrive no later than three working days prior to the
scheduled examination. Communication with the designated doctor is prohibited
regarding issues not related to the medical necessity dispute. The designated
doctor shall complete a report and file it with the IRO, in the form and manner
prescribed by the division no later than seven working days after completing
the examination. The designated doctor report shall address all issues as
directed by the division.
(n) Time
Frame for IRO Decision. The IRO will render a decision as follows:
(1) for life-threatening conditions, no later
than eight days after the IRO receipt of the dispute;
(2) for preauthorization and concurrent
medical necessity disputes, no later than the 20th day after the IRO receipt of
the dispute;
(3) for retrospective
medical necessity disputes, no later than the 30th day after the IRO receipt of
the IRO fee; and
(4) if a
designated doctor examination has been requested by the IRO, the above time
frames begin on the date of the IRO receipt of the designated doctor
report.
(o) IRO Decision.
The decision shall be mailed or otherwise transmitted to the parties and to
representatives of record for the parties and transmitted in the form and
manner prescribed by the department within the time frames specified in this
section.
(1) The IRO decision must include:
(A) a list of all medical records and other
documents reviewed by the IRO, including the dates of those
documents;
(B) a description and
the source of the screening criteria or clinical basis used in making the
decision;
(C) an analysis of, and
explanation for, the decision, including the findings and conclusions used to
support the decision;
(D) a
description of the qualifications of each physician or other health care
provider who reviewed the decision;
(E) a statement that clearly states whether
or not medical necessity exists for each of the health care services in
dispute;
(F) a certification by the
IRO that the reviewing health care provider has no known conflicts of interest
pursuant to the Insurance Code Chapter 4202, Labor Code §
413.032,
and § 12.203 of this title; and
(G) if the IRO's decision is contrary to the
division's policies or guidelines adopted under Labor Code §
413.011,
the IRO must indicate in the decision the specific basis for its divergence in
the review of medical necessity of non-network health care.
(2) The notification to the
department shall also include certification of the date and means by which the
decision was sent to the parties.
(p) Insurance Carrier Use of Peer Review
Report after an IRO Decision. If an IRO decision determines that medical
necessity exists for health care that the insurance carrier denied and the
insurance carrier utilized a peer review report on which to base its denial,
the peer review report shall not be used for subsequent medical necessity
denials of the same health care services subsequently reviewed for that
compensable injury.
(q) IRO Fees.
IRO fees will be paid in the same amounts as the IRO fees set by department
rules. In addition to the specialty classifications established as tier two
fees in department rules, independent review by a doctor of chiropractic shall
be paid the tier two fee. IRO fees shall be paid as follows:
(1) In network disputes, a preauthorization,
concurrent, or retrospective medical necessity dispute for health care provided
by a network, the insurance carrier must remit payment to the assigned IRO
within 15 days after receipt of an invoice from the IRO;
(2) In non-network disputes, IRO fees for
disputes regarding non-network health care must be paid as follows:
(A) in a preauthorization or concurrent
review medical necessity dispute or retrospective medical necessity dispute
resolution when reimbursement was denied for health care paid by the injured
employee, the insurance carrier shall remit payment to the assigned IRO within
15 days after receipt of an invoice from the IRO.
(B) in a retrospective medical necessity
dispute, the requestor must remit payment to the assigned IRO within 15 days
after receipt of an invoice from the IRO.
(i)
If the IRO fee has not been received within 15 days of the requestor's receipt
of the invoice, the IRO shall notify the department and the department shall
dismiss the dispute with prejudice.
(ii) After an IRO decision is rendered, the
IRO fee must be paid or refunded by the nonprevailing party as determined by
the IRO in its decision.
(3) Designated doctor examinations requested
by an IRO shall be paid by the insurance carrier in accordance with the medical
fee guidelines under the Labor Code and related rules.
(4) Failure to pay or refund the IRO fee may
result in enforcement action as authorized by statute and rules.
(5) For health care not provided by a
network, the non-prevailing party to a retrospective medical necessity dispute
must pay or refund the IRO fee to the prevailing party upon receipt of the IRO
decision, but not later than 15 days regardless of whether an appeal of the IRO
decision has been or will be filed.
(6) The IRO fees may include an amended
notification of decision if the department determines the notification to be
incomplete. The amended notification of decision shall be filed with the
department no later than five working days from the IRO's receipt of such
notice from the department. The amended notification of decision does not alter
the deadlines for appeal.
(7) If a
requestor withdraws the request for an IRO decision after the IRO has been
assigned by the department but before the IRO sends the case to an IRO
reviewer, the requestor shall pay the IRO a withdrawal fee of $150 within 30
days of the withdrawal. If a requestor withdraws the request for an IRO
decision after the case is sent to a reviewer, the requestor shall pay the IRO
the full IRO review fee within 30 days of the withdrawal.
(8) In addition to department enforcement
action, the division may assess an administrative fee in accordance with Labor
Code §
413.020 and
§ 133.305 of this subchapter.
(9) This section shall not be deemed to
require an employee to pay for any part of a review. If application of a
provision of this section would require an employee to pay for part of the cost
of a review, that cost shall instead be paid by the insurance
carrier.
(r) Defense. An
insurance carrier may claim a defense to a medical necessity dispute if the
insurance carrier timely complies with the IRO decision with respect to the
medical necessity or appropriateness of health care for an injured employee.
Upon receipt of an IRO decision for a retrospective medical necessity dispute
that finds that medical necessity exists, the insurance carrier must review,
audit, and process the bill. In addition, the insurance carrier shall tender
payment consistent with the IRO decision, and issue a new explanation of
benefits (EOB) to reflect the payment within 21 days upon receipt of the IRO
decision. The decision of an IRO under Labor Code §
413.031(m)
is binding during the pendency of a dispute.
(s) Appeal of IRO decision. A decision issued
by an IRO is not considered an agency decision and neither the department nor
the division is considered a party to an appeal. In a division Contested Case
Hearing (CCH), the party appealing the IRO decision has the burden of
overcoming the decision issued by an IRO by a preponderance of evidence based
medical evidence. A party to a medical dispute that remains unresolved after a
review under Labor Code §
504.053(d)(3)
or Insurance Code §
1305.355
is entitled to a contested case hearing in the same manner as a hearing
conducted under Labor Code §
413.0311.
A party to a medical necessity dispute may seek review of a dismissal or
decision at a division CCH as follows:
(1) A
party to a medical necessity dispute may appeal the IRO decision by requesting
a division CCH conducted by a division administrative law judge. A benefit
review conference is not a prerequisite to a division CCH under this
subsection.
(A) The written appeal must be
filed with the division's Chief Clerk of Proceedings no later than the later of
the 20th day after the effective date of this section or 20 days after the date
the IRO decision is sent to the appealing party and must be filed in the form
and manner required by the division. Requests that are timely submitted to a
division location other than the division's Chief Clerk of Proceedings, such as
a local field office of the division, will be considered timely filed and
forwarded to the Chief Clerk of Proceedings for processing; however, this may
result in a delay in the processing of the request.
(B) The party appealing the IRO decision
shall send a copy of its written request for a hearing to all other parties
involved in the dispute. The IRO is not required to participate in the division
CCH or any appeal.
(C) Except as
otherwise provided in this section, a division CCH shall be conducted in
accordance with Chapters 140 and 142 of this title (relating to Dispute
Resolution--General Provisions and Dispute Resolution--Benefit Contested Case
Hearing).
(D) At a division CCH,
the administrative law judge shall consider the treatment guidelines:
(i) adopted by the network under Insurance
Code §
1305.304,
for a network dispute;
(ii) adopted
by the division under Labor Code §
413.011(e)
for a non-network dispute; or
(iii)
adopted, if any, by the political subdivision or pool that provides medical
benefits under Labor Code §
504.053(b)(2)
if those treatment guidelines meet the standards provided by Labor Code §
413.011(e).
(E) Prior to a division CCH, a
party may submit a request for a letter of clarification by the IRO to the
division's Chief Clerk of Proceedings. A copy of the request for a letter of
clarification must be provided to all parties involved in the dispute at the
time it is submitted to the division.
(i) A
party's request for a letter of clarification must be submitted to the division
no later than 10 days before the date set for hearing. The request must include
a cover letter that contains the names of the parties and all identification
numbers assigned to the hearing or the independent review by the division, the
department, or the IRO.
(ii) The
department may at its discretion forward the party's request for a letter of
clarification to the IRO that conducted the independent review. The department
will not forward to the IRO a request for a letter of clarification that asks
the IRO to reconsider its decision or issue a new decision.
(iii) The IRO shall send a response to the
request for a letter of clarification to the department and to all parties that
received a copy of the IRO's decision within 5 days of receipt of the party's
request for a letter of clarification. The IRO's response is limited to
clarifying statements in its original decision; the IRO shall not reconsider
its decision and shall not issue a new decision in response to a request for a
letter of clarification.
(iv) A
request for a letter of clarification does not alter the deadlines for
appeal.
(F) A party to a
medical necessity dispute who has exhausted all administrative remedies may
seek judicial review of the division's decision. Judicial review under this
paragraph shall be conducted in the manner provided for judicial review of
contested cases under Chapter 2001, Subchapter G Government Code, and is
governed by the substantial evidence rule. The party seeking judicial review
under this section must file suit not later than the 45th day after the date on
which the division mailed the party the decision of the administrative law
judge. The mailing date is considered to be the fifth day after the date the
decision of the administrative law judge was filed with the division. A
decision becomes final and appealable when issued by a division administrative
law judge. If a party to a medical necessity dispute files a petition for
judicial review of the division's decision, the party shall, at the time the
petition is filed with the district court, send a copy of the petition for
judicial review to the division's Chief Clerk of Proceedings. The division and
the department are not considered to be parties to the medical necessity
dispute pursuant to Labor Code §
413.031(k-2)
and §
413.0311(e).
(G) Upon receipt of a court petition seeking
judicial review of a division CCH held under this subparagraph, the division
shall prepare and submit to the district court a certified copy of the entire
record of the division CCH under review.
(i)
The following information must be included in the petition or provided to the
division by cover letter:
(I) any applicable
division docket number for the dispute being appealed;
(II) the names of the parties;
(III) the cause number;
(IV) the identity of the court; and
(V) the date the petition was filed with the
court.
(ii) The record of
the hearing includes:
(I) all pleadings,
motions, and intermediate rulings;
(II) evidence received or
considered;
(III) a statement of
matters officially noticed;
(IV)
questions and offers of proof, objections, and rulings on them;
(V) any decision, opinion, report, or
proposal for decision by the officer presiding at the hearing and any decision
by the division; and
(VI) a
transcription of the audio record of the division CCH.
(iii) The division shall assess to the party
seeking judicial review expenses incurred by the division in preparing the
certified copy of the record, including transcription costs, in accordance with
the Government Code §
2001.177
(relating to Costs of Preparing Agency Record). Upon request, the division
shall consider the financial ability of the party to pay the costs, or any
other factor that is relevant to a just and reasonable assessment of
costs.
(2) If a
party to a medical necessity dispute properly requests review of an IRO
decision, the IRO, upon request, shall provide a record of the review and
submit it to the requestor within 15 days of the request. The party requesting
the record shall pay the IRO copying costs for the records. The record shall
include the following documents that are in the possession of the IRO and which
were reviewed by the IRO in making the decision including:
(A) medical records;
(B) all documents used by the insurance
carrier in making the decision that resulted in the adverse determination under
review by the IRO;
(C) all
documentation and written information submitted by the insurance carrier to the
IRO in support of the review;
(D)
the written notification of the adverse determination and the written
determination of the appeal to the insurance carrier or the insurance carrier's
URA;
(E) a list containing the
name, address, and phone number of each health care provider who provided
medical records to the IRO relevant to the review;
(F) a list of all medical records or other
documents reviewed by the IRO, including the dates of those
documents;
(G) a copy of the
decision that was sent to all parties;
(H) copies of any pertinent medical
literature or other documentation (such as any treatment guideline or screening
criteria) utilized to support the decision or, where such documentation is
subject to copyright protection or is voluminous, then a listing of such
documentation referencing the portion(s) of each document utilized;
(I) a signed and certified custodian of
records affidavit; and
(J) other
information that was required by the department related to a request from an
insurance carrier or the insurance carrier's URA for the assignment of the
IRO.
(t)
Medical Fee Dispute Request. If the requestor has an unresolved non-network fee
dispute related to health care that was found medically necessary, after the
final decision of the medical necessity dispute, the requestor may file a
medical fee dispute in accordance with §
133.305
and §
133.307 of
this subchapter (relating to MDR-General and MDR of Fee Disputes,
respectively).
(u) First Responders.
In accordance with Labor Code §
504.055(d),
an appeal regarding the denial of a claim for medical benefits, including all
health care required to cure or relieve the effects naturally resulting from a
compensable injury involving a first responder will be accelerated by the
division and given priority. The party seeking to expedite the contested case
hearing or appeal must provide notice to the division and independent review
organization that the contested case hearing or appeal involves a first
responder.
(v) Texas Military
Forces. In accordance with Labor Code §
501.028, the division will
accelerate and give priority to an appeal from a denial of a claim for medical
benefits.
(1) This subsection applies to a
claim for medical benefits made by a member of the Texas military forces who,
while on state active duty, sustains a serious bodily injury, as defined by
Penal Code §
1.07.
(2) The division will accelerate and give
priority to actions involving all health care required to cure or relieve the
effects naturally resulting from a compensable injury.
(3) The member must notify the division and
IRO that the CCH or appeal involves a member of the Texas military
forces.
(w) Enforcement.
The department or the division may initiate appropriate proceedings under
Chapter 12 of this title or Labor Code, Title 5 and division rules against an
independent review organization or a person conducting independent
reviews.
