Comments making recommendations for changes to §133.305, §133.307 and §133.308 were received from the following groups or associations: Employers Claims Adjustment Services; EZRX Pharmacy Services; Forte; Hilliard & Associates, P.C.; HNC Software Inc.; Insurance Council of Texas; MedWay Health Inc.; State Office of Administrative Hearings; Texas Association of Business; Texas Chiropractic Association; Texas Department of Insurance; and Texas Medical Foundation.

General Comments related to §§133.305, 133.307, and 133.308.

COMMENT: Commenter supported the proposed amendments to the rules as "a step in the right direction"; however, commenter indicated more could be done through amendments to the rules to reduce the flow of documents and to provide for a more effective medical dispute resolution process.

RESPONSE: The commission agrees in part. The rule is written to keep the number of documents filed with the commission at a minimum and should reduce the flow and the number of requests to incorrect carrier locations. Previously this was frustrating to both carriers and health care providers. The IROs request documentation directly from parties. The commission disagrees that more amendments are needed to further reduce the flow of documents to incorrect locations as this is already being addressed in this amendment.

COMMENT: Commenters expressed general, overall opposition to the proposed rules for reasons that they cause physicians to spend less time with injured employees, and force the physicians to spend more time on paperwork. Commenters felt the rules would cause good physicians to no longer be able to treat workers' compensation patients.

RESPONSE: The commission disagrees. Proposed changes to the rule do not require physicians to spend less time with patients. Generally physicians have office staff to handle the administrative tasks such as billing and gathering documentation. The anticipated change would be a reduction in the administrative time spent researching correct carrier fax numbers, simultaneous faxing to the division and the carrier by having the two copies of the request delivered exclusively to the division for distribution.

COMMENT: Commenters described the current process for the coordination of medical dispute resolution as very complicated, and recommended a different detailed process and revision of rules that bears little resemblance to the amended rules as proposed. The recommendations include: TWCC determination if request is a fee or medical necessity dispute; screening for timeliness, completeness; appropriateness; and dismissal of request if necessary; and issuance of a tracking number for those not dismissed. The process revision offered by commenters included suggested language for proper dismissal of requests, and offered that their suggested process would better enable commission staff to streamline and monitor all aspects of an appropriate medical dispute resolution process.

RESPONSE: The commission agrees in part. The commission was specific in identifying the subsections requiring amending. The commission disagrees that a different and detailed process and revision of rules as offered by the commenter, that bears little resemblance to the amended rules as proposed, are appropriate. The amended rules as proposed and adopted address all of the areas addressed in this comment, which include: determining dispute type; screening for timeliness; identifying complete requests; the appropriateness of a request; dismissals; and providing a properly filed dispute.

Proposed §133.305

COMMENT: Commenter expressed support for the amended rules as proposed.

RESPONSE: The commission agrees. Because the commission will receive two copies of the dispute, the commission will be able to confirm the request receipt date. This allows quicker processing and delivery to the respondent for more definitive seven and 14 day response due dates. The timeframes for the respondent are based on the date the request is provided to them. The commission will be providing the second copy to the respondent.

COMMENT: Commenter recommended that language be added to subsection (a)(4) that indicates medical necessity disputes do not include or involve insurance carrier denials or reductions of payment due to the application of payment exception codes "T, U, or V" regarding preauthorized services, and that a carrier may not retrospectively review a claim for medical necessity when appropriate preauthorization procedures were followed.

RESPONSE: The commission agrees in part. The carrier's use of payment exception codes T, U, and V is inappropriate for preauthorized services. Commission Rule 133.301(a) addresses the issue of retrospective denial of medical necessity in preauthorized services. The commission, by procedure, will determine the dispute type through the intake process of incoming dispute requests. However, the commission disagrees that the addition of suggested language is appropriate in subsection (a)(4) because (a)(4) addresses who can request retrospective medical necessity dispute resolution not the elements of the request. The discussion of these exception codes pertains to medical necessity issues as addressed in comments regarding §133.308.

COMMENT: Commenter suggested that language be added to portions of the rule not amended in the proposal: subsection (a)(8) to identify and define a "line item," and subsection (a)(9) to identify and define a verifiable means of delivery. Commenter provided suggested definitions and offered the rationale that the need for these additions is to clarify language for IRO fee payment, and to provide proof that important documents are delivered to parties in a dispute.

RESPONSE: The commission disagrees. The TWCC-60 table captures the information that the commenter defines as a line item. No further definition is required. Adding a definition for verifiable means of delivery is not required. Rules 133.307(e)(2)(B), 133.307 (f)(3) and 133.308 (f)(3) require "convincing evidence" of receipt. Verifiable means of delivery should not be limited by various examples given in a definition, these examples may be too numerous to include in one definition, and may change with technological advances.

Proposed §133.307.

COMMENT: Commenter was supportive of the amended rule proposal in subsection (c) stating it will allow more uniform handling of disputes and will avoid duplicate filings with the commission.

RESPONSE: The commission agrees that filing the disputes with the Medical Review Division is an improvement to the overall process.

COMMENT: Commenter recommended that a grammatical error be corrected to subsection (e) as proposed, by adding the opening parenthesis to the last sentence.

RESPONSE: The commission disagrees. Opening parenthesis is present and before the first word in the last sentence "(Requests..."

COMMENT: Commenter recommended a revision to proposed subsection (e) to require the requestor to complete sections I, II, and V of the TWCC-60 form. Commenters noted that if the sections were not completed upon the receipt of a request for medical dispute resolution, the request should be dismissed, and commission staff should notify the requestor accordingly. Also, a recommendation was made that commission staff should dismiss and notify the requestor when all necessary and required documentation is not attached to the request.

RESPONSE: The commission agrees in part. The TWCC-60 with instruction is the form, format and manner prescribed by the commission. The TWCC-60 instructions require the requestor to complete sections I, II and V of the form. This requirement will not change with the proposed amendments. If any of the vital information in sections I, II and V is missing, the commission will not be able to process the request and will notify the requestor and respondent of the incomplete request, which will result in a dismissal.

COMMENT: Commenter was supportive of the proposed language amendments to (e)(1), and stated such language additions will ensure quality, legible copies, and eliminate the poor quality fax material that is currently being received. Commenter further stated the proposed language amendments would additionally eliminate the question of when documents were received.

RESPONSE: The commission agrees that providing two copies of the request eliminates questions regarding filing and response dates and that other provisions of subsection (e) require legible requests.

COMMENT: Commenters recommended language addition to subsection (e)(1) that allows delivery by overnight services, as these overnight services are cheaper than U.S. mail, and include software that allows for mail tracking at all times. Commenter additionally recommended maintenance of original post-marked envelopes for proof of when the request was submitted via U.S. mail. Another commenter recommended a designated carrier fax number be designated as a part of subsection (e)(1)(B) for submission of medical dispute requests, and that such designated fax number be posted on the TWCC website. Commenter suggested the lack of such a provision has resulted in carriers receiving such requests at countless carrier business locations and individuals.

RESPONSE: The commission agrees in part. The commission agrees and has continuously maintained the original postmarked envelopes for proof of when the request was postmarked via U.S. mail, however rule 133.307(d) identifies that the commission shall deem a request to be filed on the date the division receives the request, not the date it was mailed. Subsection (e) has been changed to allow delivery of the request to the division by any verifiable service. It will be the responsibility of the requestor to deliver two paper copies by any verifiable service or personal delivery.

However, in response to commenter's proposed recommendation of a designated fax number being posted on the TWCC website, the commission disagrees. The proposed amendment for the filing of two paper copies eliminates the need for faxing requests directly to the respondent or carrier. The commission will forward the second paper copy to the respondent by mail or to the carrier via its Austin representative who shall be required to sign for the request copy.

COMMENT: Commenter recommended the rule be changed in subsection (e)(1)(B) to require the commission to submit the documentation by certified mail or other method whereby the health care provider's receipt can be confirmed. Commenter indicated that the commission should be just as responsible for the provider's confirmation of receipt as the commission is with insurance carriers.

RESPONSE: The commission disagrees that certified mail delivery be required. The commission has revised the rule as adopted and will use any verifiable means it determines appropriate based on volume, experience and resources available.

COMMENT: Commenter recommended language substitution to subsection (e)(2) to read, "Each copy of the request shall be legible, include two copies of each document . . .." Commenters reasoned that the change in language to include the provision of two copies of each document sent directly to the commission would eliminate the commission's staff need for copying, and thereby reduce costs to the commission. Commenters suggested one copy can be retained for commission records and the other forwarded to the respondent.

RESPONSE: The commission disagrees that this language needs to be changed. Section (e)(2) identifies what documents should be contained in the dispute request. Section (e)(1) directs the requestor to file two copies of the request. Subsection (e)(2) requires each copy to contain only one copy of each supporting document. The commission will not need to copy the request and can provide one copy to the respondent and maintain one copy for commission records. Each copy must contain the identical supporting documentation.

COMMENT: Commenter suggested that subsection (e)(2)(D) identify or designate what an IRO is.

RESPONSE: The commission disagrees. References to the IRO can be found in §133.305 Medical Dispute Resolution General, section (a)(3) and (a)(4), and in §133.308(a)(1) where the IRO process is further identified.

COMMENT: Commenter recommended subsection (e)(3) contain very specific clarification regarding what is required as an essential element to the completion of the forms by the respondent in order to prevent dismissals as suggested in subsection (g) of the rule.

RESPONSE: The commission disagrees. The form, format and manner prescribed by the commission is the TWCC-60. The instructions for this form specifically direct the parties on how to complete the designated sections of the form with information they are required to provide. This should address the commenter's concern about a potential dismissal under subsection (m) of this rule, which sets out when the division may dismiss a request.

COMMENT: Commenter recommended additional language in subsection (e)(3)(B) to include: " . . . and any written notices issued in accordance with §124.2" as health care provider requestors are often unaware of the existence and/or nature and extent of disputes pursuant to §124.2, and this offers a mechanism for the carrier to provide proper notice to the requestor of issues that affect the medical dispute resolution process.

RESPONSE: The commission agrees in part. The commission recognizes situations in which health care providers are unaware of issues regarding the extent of injury and compensability when treating injured employees. The TWCC-60 form Part III is required to be completed by the respondent. This section asks the respondent if the issues have been resolved. The commission has added language to the rule providing that if an extent of injury/compensability dispute has not been resolved, the respondent is required to attach any TWCC-21s filed in the claim relevant to the medical dispute. However, the commission believes that the requirement to attach TWCC-21s is more appropriately added to section (e)(4), rather than (e)(3) and this has been done. The TWCC-21 confirms that this is a valid issue that remains unresolved and informs the provider of the existence of compensability or extent of injury issues.

COMMENT: Commenter expressed support for the proposed amendment to subsection (e)(3)(C) that allows for 14 days for the completed request to be filed with the division and the requestor upon receipt of the respondent's request. Commenter felt 14 days would allow respondent to obtain all documentation and eliminate additional filings.

RESPONSE: The commission agrees that the change from three (3) working days to 14 calendar days for the filing of a complete request is an improvement to the dispute process.

COMMENT: Commenter opposed the 14 days that a carrier has to respond to a retrospective review as proposed in the amended rules stating that it is inconsistent with the prospective medical dispute response time of seven days. Commenter suggested that in a retrospective dispute, the carrier has already appealed the issue with all related documentation on file. Commenter further indicated that the additional seven-day time period is detrimental to the health care provider since the provider is already three months past the date of service for the injured employee, and the added days only benefit the carrier and not the other system participants.

RESPONSE: The commission disagrees. The previous 3-day requirement for responses in all dispute types was problematic for all parties. The commission recognizes the need to have a shorter time frame for responses in prospective medical necessity issues to avoid further delay of health care to the injured employee. In retrospective disputes, which include fee disputes, care has already been rendered to the injured employee; the urgency, for medical care purposes, is not as great as in a prospective medical necessity dispute. In many of these retrospective disputes, dates of service often span several months. For this reason, the 14 calendar days may be necessary for carriers to have sufficient time to respond to the volume of issues these larger disputes may contain. Therefore, the commission allows the 14-day response time. In addition, rules require that if a health care provider is denied reimbursement, they must request reconsideration in accordance with §133.304 (titled Medical Payments and Denials). Under these rules, the carrier has 45 days to take final action on the bill and 21 days to reconsider a bill. The filing requirements under 133.307(d)(1) allow the provider to access Medical Dispute Resolution up to one year from the date of service.

COMMENT: Commenter recommended language addition to subsection (e)(4) that requires the respondent to submit proof of payment (e.g., copies of checks) with its certification of resolution prior to dismissal of the case by the commission. Commenter also recommended that the insurance carrier should be required to submit proof of payment of any interest owed as well as principal amount in dispute.

RESPONSE: The commission disagrees with the addition of this language. Proof of payment (e.g., copies of checks) may not always indicate that the requestor received these checks and the commission would not automatically dismiss a request that contains copies of checks. If payment has been received, the requestor must inform the commission per §133.307(m)(1) that the dispute no longer exists. Once the commission is informed that the requestor has received payment or the dispute no longer exists, then the dispute will be dismissed. Commenter also recommended that the carrier be required to submit proof of payment of any interest owed as well as principal amount in dispute; however, noncompliance with this statutory requirement per §413.019 is subject to review by the commission's Division of Compliance and Practices. Consequently, changes as recommended are not necessary.

COMMENT: Commenters recommended language be added to subsection (f) that requires the maintenance of original post-marked envelopes when a request is submitted in order to establish when the request for medical dispute resolution was filed. Commenter recommended the following be added to subsection (f): "The request must be legible, must contain two copies of each document . . . ." Commenters' reasoned that the change in language to include the provision of two copies of each document sent directly to the commission would eliminate the commission staff's need for copying, and thereby reduce costs to the commission. Commenters suggested one copy can be retained for commission records and the other forwarded to the respondent.

RESPONSE: The commission agrees in part. The commission has continuously maintained the original postmarked envelopes for proof of when the request was postmarked via U.S. mail; however, §133.307(d) indicates that the commission shall deem a request to be filed on the date the division receives the request. It will be the responsibility of the requestor to deliver two paper copies to the division by any means except for facsimile or other electronic form. This eliminates the requirement on the commission to produce two copies for the requestor.