Comments supporting new §134.303 as proposed were received from the following groups: Insurance Council of Texas; Texas Dental Association; and Texas Mutual Insurance Company.

Comments suggesting changes were received from Texas Mutual Insurance Company.

COMMENT: Commenters supported the adoption of new §134.303 which updates reimbursement guidelines for dental services and assists the insurance industry in providing improved access to dental treatment to injured employees.

RESPONSE: The commission agrees.

COMMENT: Commenter recommended the deletion of proposed subsection (d) regarding the reduced MAR for multiple procedures performed during the same operative session. The commenter illustrated that implementation of the multiple procedure rule in many instances would not result in increased reimbursement to the dental provider, and consequently would not serve as an incentive to ensure continued access to dental care.

RESPONSE: The commission agrees with commenter's recommendation. The commenter's illustration of proposed subsection (d), which proposed reimbursement of the procedure with the highest MAR value at 100% of its MAR, and reimbursement for each subsequent procedure at 50% of its MAR value, resulted in a reimbursement that was at, or very near, the reimbursement rate of Texas Labor Code §134.202, the 2002 Medical Fee Guideline. The commission further agrees that such a reduction provision defeats the goal of continued access to dental care, and may also limit the participation of dental professionals in the Texas workers' compensation system. Consequently, subsection (d) as proposed is deleted. Subsequent subsections have been renumbered accordingly.

COMMENT: The commenter suggested that the payment adjustment factor should be increased to 261% of the Texas Medicaid Dental Fee Schedule to reflect the usual, customary, and reasonable (UCR) charges.

RESPONSE: The commission disagrees that the payment adjustment factor should be set at 261% of the Medicaid rate, the Texas Dental Association's reported usual, customary, and reasonable charge. This rate is far outside the range of reimbursements reported by carriers (TASB, Travis County, and TMIC) as fair and reasonable reimbursement under §134.302 of this title (regarding the previous Dental Fee Guideline). The suggested rate would be a 108% increase over the 125% of Medicaid reimbursement rate and is contrary to the cost containment requirements of the Texas Workers' Compensation Act.

The new rule is adopted under Texas Labor Code §402.061, which authorizes the commission to adopt rules necessary to administer the Act; Texas Labor Code § 408.021, which entitles injured employees to all health care reasonably required by the nature of the injury as and when needed; Texas Labor Code §413.002, which requires the commission's Medical Review Division to monitor health care providers, insurance carriers and claimants to ensure compliance with commission rules; Texas Labor Code §413.007, which sets out information to be maintained by the commission's Medical Review Division; Texas Labor Code §413.011, which authorizes the commission by rule to establish medical policies and guidelines; Texas Labor Code §413.012, which requires review and revision of the medical policies and fee guidelines at least every two years; Texas Labor Code §413.013, which requires the commission by rule to establish programs related to health care treatments and services for dispute resolution, monitoring, and review; Texas Labor Code §413.014, which requires express preauthorization by the insurance carrier for health care treatments and services; Texas Labor Code §413.015, which requires insurance carriers to pay charges for medical services as provided in the statute and requires that the commission ensure compliance with the medical policies and fee guidelines through audit and review; Texas Labor Code §413.016, which provides for refund of payments made in violation of the medical policies and fee guidelines; Texas Labor Code §413.017, which provides a presumption of reasonableness for medical services fees that are consistent with the medical policies and fee guidelines; Texas Labor Code, §413.019, which provides for payment of interest on delayed payments refunds or overpayments; and Texas Labor Code §413.031, which provides a procedure for medical dispute resolution. The new rule is adopted under the Texas Labor Code §§402.061, 408.021, 413.002, 413.007, 413.011, 413.012, 413.013, 413.014, 413.015, 413.016, 413.017, 413.019, and 413.031.