RESPONSE: The commission agrees that under subsection (a) if the health care provider failed to make the affirmation the carrier is not required to pay for the pharmacy services provided in the first seven days after injury (although the carrier could be found liable retrospectively). However, the commission disagrees with the specific language and its recommended placement as it could be misinterpreted. The commission amended subsection (a) to clarify that affirmation on the bill of confirmation and verification is necessary only to ensure payment to the health care provider for medications necessary for the first seven days after the injury in the event the injury is found to be noncompensable.

COMMENT: Commenter recommends adding clarifying language at the end of subsection (d) to read: "Pharmacies are not guaranteed payment for specified pharmaceutical services following the first seven days after the date of injury."

RESPONSE: The commission disagrees that such language is necessary as the language in subsection (a) makes this clear. The intent of subsection (d) is to prevent doctors from believing that this rule somehow limits the period for which they can prescribe medications.

COMMENT: Commenter recommended additional changes to the rule to reduce uncertainty regarding payment for pharmaceutical services provided more than seven days after the date of an injury. Commenter recommended revising subsection (e) to read, "Subject to the requirements of 28 TAC §§42.305 & 124.3 (relating to mandatory payment of claims submitted prior to a HCP provider's receipt of a notice of a contest of compensability in cases where compensability was not challenged by a carrier within seven days of the carrier's receipt of notice of claim), ...." Clarification is recommended because claims filed prior to a notice of contested compensability must be paid even if compensability is later contested and claims are ultimately found noncompensable. Commenter believed that this requirement is neither widely understood nor followed and that clarification would benefit all parties.

The Commenter also recommended additional language to subsection (e) as follows: "...Except in cases where a determination of non-compensability has been timely and properly made, the carrier may not deny, reduce or recover payments to the HCP based on the absence of medical necessity or appropriateness. Carriers may seek to recover such payments only from the prescribing physician or the injured worker." Additional language is recommended because pharmacies are not in a position to question a physician's determination of medical necessity.

RESPONSE: The commission disagrees for a number of reasons. First, 28 TAC §42.305 does not apply to claims with dates of injury on or after January 1, 1991. Second, the commenter's statement that claims filed prior to the date that the carrier denies compensability are required to be paid is incorrect in general and inapplicable to this specific rule. While it is true that a carrier will be required to make payment for pharmacy services for the initial period following the date of injury as described in subsection (a) of the rule, it is not true that carriers are required to pay all medical bills filed prior to the date that the carrier determines that a claim is noncompensable.

The commenter's recommended language that seeks to limit a carrier's entitlement to reduce or deny or recover payments goes well beyond the scope of this rule.

The new rule is adopted under the following statutes: the Texas Labor Code §402.042, that 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; the Texas Labor Code §402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code §406.010, that 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; the Texas Labor Code §408.021(a), that states 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; the Texas Labor Code §408.025, that requires the commission to specify by rule what reports a health care provider is required to file; the Texas Labor Code §408.028, as passed by the 77th Texas Legislature, that requires health care practitioners providing care to an employee to prescribe any necessary prescription drugs in accordance with applicable state law; the Texas Labor Code §413.002, that requires the commission to monitor health care providers and insurance carriers to ensure compliance with commission rules relating to health care including medical policies and fee guidelines; the Texas Labor Code §413.011, as passed by the 77th Texas Legislature, that requires the commission by rule to establish medical policies and guidelines relating to necessary treatments for injuries, and fees, designed to ensure the quality of medical care and to achieve effective medical cost control; the Texas Labor Code §413.012, that requires the commission to review and revise medical policies and fee guidelines at least every two years to reflect current medical treatment and fees that are reasonable and necessary; the Texas Labor Code §413.013 (1), (2), and (3), that require the commission by rule to establish a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; a program for the systematic monitoring of the necessity of the treatments administered and fees charged and paid for medical treatments or services including the authorization of prospective, concurrent or retrospective review under the medical policies of the commission to ensure the medical policies and guidelines are not exceeded; and a program to detect practices and patterns by insurance carriers in unreasonably denying authorization of payment for medical services requested or performed if authorization is required by the medical policies of the commission; the Texas Labor Code §413.0141, as passed by the 77th Texas Legislature, regarding initial pharmaceutical coverage; the Texas Labor Code §413.017, that establishes presumption of reasonableness of medical services; the Texas Labor Code §413.031, as passed by the 77th Texas Legislature, that entitles a party, including a health care provider, to a review of a medical service for which authorization for payment has been denied or reduced; the Texas Labor Code §415.002, that establishes an administrative violation for an insurance carrier to: unreasonably dispute the reasonableness and necessity of health care, to violate a commission rule or to fail to comply with the Act; the Texas Labor Code §415.003, as passed by the 77th Texas Legislature, that establishes an administrative violation for a health care provider to: administer improper, unreasonable, or medically unnecessary treatment or services, to violate a commission rule, or to fail to comply with the act; and the Texas Labor Code §415.0035, that establishes an administrative violation for a provider or a carrier to violate any provision of the statute or rules.

The new rule is adopted under the Texas Labor Code §402.042, §402.061, §406.010, §408.021(a), §408.025, §408.028, §413.002, §§413.011-413.013(1), (2) and (3), §413.0141, §413.017, §413.031, §415.002, §415.003, §415.0035.