Current through Reg. 49, No. 38; September 20, 2024
(a) The following
words and terms when used in this chapter shall have the following meanings,
unless the context clearly indicates otherwise:
(1) Adverse determination: A determination by
a utilization review agent made on behalf of a payor that the health care
services provided or proposed to be provided to an injured employee are not
medically necessary or appropriate. The term does not include a denial of
health care services due to the failure to request prospective or concurrent
utilization review. An adverse determination does not include a determination
that health care services are experimental or investigational.
(2) Ambulatory surgical services: surgical
services provided in a facility that operates primarily to provide surgical
services to patients who do not require overnight hospital care.
(3) Concurrent utilization review: a form of
utilization review for on-going health care listed in subsection (q) of this
section for an extension of treatment beyond previously approved health care
listed in subsection (p) of this section.
(4) Diagnostic study: any test used to help
establish or exclude the presence of disease/injury in symptomatic individuals.
The test may help determine the diagnosis, screen for specific disease/injury,
guide the management of an established disease/injury, and formulate a
prognosis.
(5) Final adjudication:
the commissioner has issued a final decision or order that is no longer subject
to appeal by either party.
(6)
Outpatient surgical services: surgical services provided in a freestanding
surgical center or a hospital outpatient department to patients who do not
require overnight hospital care.
(7) Preauthorization: a form of prospective
utilization review by a payor or a payor's utilization review agent of health
care services proposed to be provided to an injured employee.
(8) Reasonable opportunity: At least one
documented good faith attempt to contact the provider of record that provides
an opportunity for the provider of record to discuss the services under review
with the utilization review agent during normal business hours prior to issuing
a prospective, concurrent, or retrospective utilization review adverse
determination:
(A) no less than one working
day prior to issuing a prospective utilization review adverse
determination;
(B) no less than
five working days prior to issuing a retrospective utilization review adverse
determination; or
(C) prior to
issuing a concurrent or post-stabilization review adverse
determination.
(9)
Requestor: the health care provider or designated representative, including
office staff or a referral health care provider or health care facility that
requests preauthorization, concurrent utilization review, or voluntary
certification.
(10) Work
conditioning and work hardening: return-to-work rehabilitation programs as
defined in this chapter.
(b) When division-adopted treatment
guidelines conflict with this section, this section prevails.
(c) The insurance carrier is liable for all
reasonable and necessary medical costs relating to the health care:
(1) listed in subsection (p) or (q) of this
section only when the following situations occur:
(A) an emergency, as defined in Chapter 133
of this title (relating to General Medical Provisions);
(B) preauthorization of any health care
listed in subsection (p) of this section that was approved prior to providing
the health care;
(C) concurrent
utilization review of any health care listed in subsection (q) of this section
that was approved prior to providing the health care; or
(D) when ordered by the
commissioner;
(2) or per
subsection (r) of this section when voluntary certification was requested and
payment agreed upon prior to providing the health care for any health care not
listed in subsection (p) of this section.
(d) The insurance carrier is not liable under
subsection (c)(1)(B) or (C) of this section if there has been a final
adjudication that the injury is not compensable or that the health care was
provided for a condition unrelated to the compensable injury.
(e) The insurance carrier shall designate
accessible direct telephone and facsimile numbers and may designate an
electronic transmission address for use by the requestor or injured employee to
request preauthorization or concurrent utilization review during normal
business hours. The direct number shall be answered or the facsimile or
electronic transmission address responded to within the time limits established
in subsection (i) of this section. The insurance carrier shall also comply with
any additional requirements of §
19.2012
of this title (relating to URA's Telephone Access and Procedures for Certain
Drug Requests and Post-Stabilization Care).
(f) The requestor or injured employee shall
request and obtain preauthorization from the insurance carrier prior to
providing or receiving health care listed in subsection (p) of this section.
Concurrent utilization review shall be requested prior to the conclusion of the
specific number of treatments or period of time preauthorized and approval must
be obtained prior to extending the health care listed in subsection (q) of this
section. The request for preauthorization or concurrent utilization review
shall be sent to the insurance carrier by telephone, facsimile, or electronic
transmission and, include the:
(1) name of
the injured employee;
(2) specific
health care listed in subsection (p) or (q) of this section;
(3) number of specific health care treatments
and the specific period of time requested to complete the treatments;
(4) information to substantiate the medical
necessity of the health care requested;
(5) accessible telephone and facsimile
numbers and may designate an electronic transmission address for use by the
insurance carrier;
(6) name of the
requestor and requestor's professional license number or national provider
identifier, or injured employee's name if the injured employee is requesting
preauthorization;
(7) name,
professional license number or national provider identifier of the health care
provider who will render the health care if different than paragraph (6) of
this subsection and if known;
(8)
facility name, and the facility's national provider identifier if the proposed
health care is to be rendered in a facility; and
(9) estimated date of proposed health
care.
(g) A health care
provider may submit a request for health care to treat an injury or diagnosis
that is not accepted by the insurance carrier in accordance with Labor Code
§
408.0042.
(1) The request shall be in the form of a
treatment plan for a 60 day timeframe.
(2) The insurance carrier shall review
requests submitted in accordance with this subsection for both medical
necessity and relatedness.
(3) If
denying the request, the insurance carrier shall indicate whether it is issuing
an adverse determination, and/or whether the denial is based on an unrelated
injury or diagnosis in accordance with subsection (m) of this
section.
(4) The requestor or
injured employee may file an extent of injury dispute upon receipt of an
insurance carrier's response which includes a denial due to an unrelated injury
or diagnosis, regardless of whether an adverse determination was also
issued.
(5) Requests which include
a denial due to an unrelated injury or diagnosis may not proceed to medical
dispute resolution based on the denial of unrelatedness. However, requests
which include the dispute of an adverse determination may proceed to medical
dispute resolution for the issue of medical necessity in accordance with
subsection (o) of this section.
(h) Except for requests submitted in
accordance with subsection (g) of this section, the insurance carrier shall
either approve or issue an adverse determination on each request based solely
on the medical necessity of the health care required to treat the injury,
regardless of:
(1) unresolved issues of
compensability, extent of or relatedness to the compensable injury;
(2) the insurance carrier's liability for the
injury; or
(3) the fact that the
injured employee has reached maximum medical improvement.
(i) The insurance carrier shall contact the
requestor or injured employee within the following timeframes by telephone,
facsimile, or electronic transmission with the decision to approve the request;
issue an adverse determination on a request; or deny a request under subsection
(g) of this section because of an unrelated injury or diagnoses as follows:
(1) three working days of receipt of a
request for preauthorization; or
(2) three working days of receipt of a
request for concurrent utilization review, except for health care listed in
subsection (q)(1) of this section, which is due within one working day of the
receipt of the request.
(j) The insurance carrier shall send written
notification of the approval of the request, adverse determination on the
request, or denial of the request under subsection (g) of this section because
of an unrelated injury or diagnosis within one working day of the decision to
the:
(1) injured employee;
(2) injured employee's representative;
and
(3) requestor, if not
previously sent by facsimile or electronic transmission.
(k) The insurance carrier's failure to comply
with any timeframe requirements of this section shall result in an
administrative violation.
(l) The
insurance carrier shall not withdraw a preauthorization or concurrent
utilization review approval once issued. The approval shall include:
(1) the specific health care;
(2) the approved number of health care
treatments and specific period of time to complete the treatments;
(3) a notice of any unresolved dispute
regarding the denial of compensability or liability or an unresolved dispute of
extent of or relatedness to the compensable injury; and
(4) the insurance carrier's preauthorization
approval number that conforms to the standards described in §
19.2009(a)(4)
of this title (relating to Notice of Determinations Made in Utilization
Review).
(m) In
accordance with §
19.2010
of this title (relating to Requirements Prior to Issuing Adverse
Determination), the insurance carrier shall afford the requestor a reasonable
opportunity to discuss the clinical basis for the adverse determination prior
to issuing the adverse determination. The notice of adverse determination must
comply with the requirements of §
19.2009
of this title and if preauthorization is denied under Labor Code §
408.0042
because the treatment is for an injury or diagnosis unrelated to the
compensable injury the notice must include notification to the injured employee
and health care provider of entitlement to file an extent of injury dispute in
accordance with Chapter 141 of this title (relating to Dispute
Resolution--Benefit Review Conference).
(n) The insurance carrier shall not condition
an approval or change any elements of the request as listed in subsection (f)
of this section, unless the condition or change is mutually agreed to by the
health care provider and insurance carrier and is documented.
(o) If the initial response is an adverse
determination of preauthorization or concurrent utilization review, the
requestor or injured employee may request reconsideration orally or in writing.
A request for reconsideration under this section constitutes an appeal for the
purposes of §
19.2011
of this title (relating to Written Procedures for Appeal of Adverse
Determinations).
(1) The requestor or injured
employee may within 30 days of receipt of a written adverse determination
request the insurance carrier to reconsider the adverse determination and shall
document the reconsideration request.
(2) The insurance carrier shall respond to
the request for reconsideration of the adverse determination:
(A) as soon as practicable but not later than
the 30th day after receiving a request for reconsideration of an adverse
determination of preauthorization; or
(B) within three working days of receipt of a
request for reconsideration of an adverse determination of concurrent
utilization review, except for health care listed in subsection (q)(1) of this
section, which is due within one working day of the receipt of the
request.
(3) In addition
to the requirements in this section and §
19.2011
of this title, the insurance carrier's reconsideration procedures shall include
a provision that the period during which the reconsideration is to be completed
shall be based on the medical or clinical immediacy of the condition,
procedure, or treatment.
(4) In any
instance where the insurance carrier is questioning the medical necessity or
appropriateness of the health care services prior to the issuance of an adverse
determination on the request for reconsideration, the insurance carrier shall
comply with the requirements of §
19.2010
and §
19.2011
of this title, including the requirement that the insurance carrier afford the
requestor a reasonable opportunity to discuss the proposed health care with a
doctor or, in cases of a dental plan or chiropractic services, with a dentist
or chiropractor, respectively.
(5)
The requestor or injured employee may appeal the denial of a reconsideration
request regarding an adverse determination by filing a dispute in accordance
with Labor Code §
413.031
and related division rules.
(6) A
request for preauthorization for the same health care shall only be resubmitted
when the requestor provides objective clinical documentation to support a
substantial change in the injured employee's medical condition or that
demonstrates that the injured employee has met clinical prerequisites for the
requested health care that had not been previously met before submission of the
previous request. The insurance carrier shall review the documentation and
determine if any substantial change in the injured employee's medical condition
has occurred or if all necessary clinical prerequisites have been met. A
frivolous resubmission of a preauthorization request for the same health care
constitutes an administrative violation.
(p) Non-emergency health care requiring
preauthorization includes:
(1) inpatient
hospital admissions, including the principal scheduled procedure(s) and the
length of stay;
(2) outpatient
surgical or ambulatory surgical services as defined in subsection (a) of this
section;
(3) spinal
surgery;
(4) all work hardening or
work conditioning services;
(5)
physical and occupational therapy services, which includes those services
listed in the Healthcare Common Procedure Coding System (HCPCS) at the
following levels:
(A) Level I code range for
Physical Medicine and Rehabilitation, but limited to:
(i) Modalities, both supervised and constant
attendance;
(ii) Therapeutic
procedures, excluding work hardening and work conditioning;
(iii) Orthotics/Prosthetics
Management;
(iv) Other procedures,
limited to the unlisted physical medicine and rehabilitation procedure code;
and
(B) Level II
temporary code(s) for physical and occupational therapy services provided in a
home setting;
(C) except for the
first six visits of physical or occupational therapy following the evaluation
when such treatment is rendered within the first two weeks immediately
following:
(i) the date of injury;
or
(ii) a surgical intervention
previously preauthorized by the insurance carrier;
(6) any investigational or
experimental service or device for which there is early, developing scientific
or clinical evidence demonstrating the potential efficacy of the treatment,
service, or device but that is not yet broadly accepted as the prevailing
standard of care;
(7) all
psychological testing and psychotherapy, repeat interviews, and biofeedback,
except when any service is part of a preauthorized return-to-work
rehabilitation program;
(8) unless
otherwise specified in this subsection, a repeat individual diagnostic study:
(A) with a reimbursement rate of greater than
$350 as established in the current Medical Fee Guideline; or
(B) without a reimbursement rate established
in the current Medical Fee Guideline;
(9) all durable medical equipment (DME) in
excess of $500 billed charges per item (either purchase or expected cumulative
rental);
(10) chronic pain
management/interdisciplinary pain rehabilitation;
(11) drugs not included in the applicable
division formulary;
(12) treatments
and services that exceed or are not addressed by the commissioner's adopted
treatment guidelines or protocols and are not contained in a treatment plan
preauthorized by the insurance carrier. This requirement does not apply to
drugs prescribed for claims under §§
134.506,
134.530
or
134.540
of this title (relating to Pharmaceutical Benefits);
(13) required treatment plans; and
(14) any treatment for an injury or diagnosis
that is not accepted by the insurance carrier pursuant to Labor Code §
408.0042 and §
126.14
of this title (relating to Treating Doctor Examination to Define the
Compensable Injury).
(q)
The health care requiring concurrent utilization review for an extension for
previously approved services includes:
(1)
inpatient length of stay;
(2) all
work hardening or work conditioning services;
(3) physical and occupational therapy
services as referenced in subsection (p)(5) of this section;
(4) investigational or experimental services
or use of devices;
(5) chronic pain
management/interdisciplinary pain rehabilitation; and
(6) required treatment plans.
(r) The requestor and insurance
carrier may voluntarily discuss health care that does not require
preauthorization or concurrent utilization review under subsections (p) and (q)
of this section respectively.
(1) Denial of a
request for voluntary certification is not subject to dispute resolution for
prospective review of medical necessity.
(2) The insurance carrier may certify health
care requested. The carrier and requestor shall document the agreement. Health
care provided as a result of the agreement is not subject to retrospective
utilization review of medical necessity.
(3) If there is no agreement between the
insurance carrier and requestor, health care provided is subject to
retrospective utilization review of medical necessity.
(s) An increase or decrease in review and
preauthorization controls may be applied to individual doctors or individual
workers' compensation claims by the division in accordance with Labor Code
§
408.0231(b)(4)
and other sections of this title.
(t) The insurance carrier shall maintain
accurate records to reflect information regarding requests for
preauthorization, or concurrent utilization review approval or adverse
determination decisions, and appeals, including requests for reconsideration
and requests for medical dispute resolution, if any. The insurance carrier
shall also maintain accurate records to reflect information regarding requests
for voluntary certification approval/denial decisions. Upon request of the
division, the insurance carrier shall submit such information in the form and
manner prescribed by the division.
(u) For the purposes of this section, all
utilization review must be performed by an insurance carrier that is registered
with, or a utilization review agent that is certified by, the Texas Department
of Insurance to perform utilization review in accordance with Insurance Code
Chapter 4201 and Chapter 19 of this title (relating to Licensing and Regulation
of Insurance Professionals).
(1) All
utilization review agents or registered insurance carriers who perform
utilization review under this section must comply with Labor Code §
504.055 and any other
provisions of Chapter 19, Subchapter U of this title (relating to Utilization
Reviews for Health Care Provided under Workers' Compensation Insurance
Coverage) that relate to the expedited provision of medical benefits to first
responders employed by political subdivisions who sustain a serious bodily
injury in the course and scope of employment.
(2) In accordance with Labor Code §
501.028(b),
an insurance carrier must accelerate and give priority to a claim for medical
benefits:
(A) by a member of the Texas
military forces who,
(i) while on state active
duty,
(ii) sustains a serious
bodily injury, as defined by Penal Code §
1.07;
(B) including all health care required to
cure or relieve the effects naturally resulting from a compensable
injury.
