In regard to §133.308(g)(1)(A) and (B), a commenter cited use of the word "providers" in each subparagraph and asked that the words "health care" be placed in front of the word "providers" each time it is used. However, rather than inserting the words "health care" in front of each use of the word "providers," the Division has instead modified §133.308(g)(1)(A) to say "health care providers (providers)." This change clarifies that the word "providers" is used in the section as a shortened form of "health care providers," and it is thus unnecessary to insert the words "health care" in the other places in the section where the word "providers" is used.

In regard to proposed §133.308(i), some commenters requested that the proposed language requiring a carrier to notify the Department of a request for an independent review on the day the request is received be modified to allow the carrier more time to notify the Department of the request. The commenters expressed concern that the proposed provisions would not allow sufficient time for the carrier to notify the Department. In response to these comments, the Division adopts language in §133.308(i) which requires a carrier to notify the Department of a request for an independent review "within one working day from the date" the request is received by the carrier or its URA.

In regard to proposed §133.308(l)(2) and (l)(3), a commenter said that due to the economics of the situation, parties often use clerical staff to determine what to submit to an IRO for use in an IRO review, and that a balancing act must be conducted, because IROs would prefer to just get documents that are relevant to the dispute, and not a mountain of records of which have nothing to do with the dispute. The commenter said that parties often send what they think is necessary, only to later learn that they may have needed to send more documentation. In response to the comment, the Division modified the language of §133.308(l)(2) and (3) to provide parties and their clerical staff additional guidance in determining what should be submitted to an IRO. As adopted, §133.308(l)(2) clarifies that the IRO should be provided "all medical records of the employee in the possession of the carrier or the URA that are relevant to the review, including any medical records used by the carrier or the URA in making the determinations to be reviewed by the IRO," and as adopted §133.308(l)(3) says "that the IRO should be provided "all documents, guidelines, policies, protocols and criteria used by the carrier or the URA in making the decision."

In regard to proposed §133.308(t), some commenters voiced concerns regarding the weight given to an IRO decision by the proposed subsection. The commenters suggested that an IRO decision should not carry presumptive weight. In response to the comments, the Division notes that the purpose of the proposed provision was to address a party's burden in regard to appealing an IRO decision, and the Division makes a text change to clarify this intent. The proposed version of §133.308(t) contained the sentence: "In a Contested Case Hearing (CCH), the decision issued by an IRO carries presumptive weight that may only be overcome by a preponderance of evidence-based medical evidence to the contrary." In the adopted text, this sentence has been changed to say: "In a 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."

In regard to proposed §133.308(t)(1)(B)(ii), a commenter asked that the word "deliver" be changed to "send." The Division agrees to make this change, and the adopted version of §133.308(t)(1)(B)(ii) contains the word "send."

Amended §133.305(a) adds definitions for "requestor" and "respondent." Additional amendments renumber the paragraphs in the subsection accordingly. Additionally, an amendment to subsection (a)(6) expands the definition of "non-network health care" as used in Texas Administrative Code, Title 28, Subchapter D to include health care delivered pursuant to Labor Code §413.011(d-1) and §413.0115. This amendment clarifies that health care provided through a voluntary or informal network is non-network health care.

New §133.307(a)(1) specifies that the section is applicable to a request for medical fee dispute resolution for non-network or certain out-of-network health care not subject to a contract, that is remanded to the Division or filed on or after May 25, 2008. New subsection (a)(2) specifies that except as provided in paragraph (2) of the subsection, dispute resolution requests filed prior to May 25, 2008, shall be resolved in accordance with the statutes and rules in effect at the time the request was filed. New subsection (a)(2) specifies that subsection (f) of the section applies to a request for medical fee dispute resolution for non-network or certain authorized out-of-network health care not subject to a contract, that is pending for adjudication by the Division on September 1, 2007; remanded to the Division on or after September 1, 2007; or filed on or after September 1, 2007. New subsection (a)(3) says that in resolving non-network disputes regarding the amount of payment due for health care determined to be medically necessary and appropriate for treatment of a compensable injury, the role of the Division of Workers' Compensation (Division) is to adjudicate the payment, given the relevant statutory provisions and Division rules.

Amendments to §133.307(c)(2)(A) and (B) and to §133.307(d)(2)(A) and (3)(A) clarify that medical bills and explanation of benefits must be in a paper format rather than the format used for electronic submission of these documents. Amended §133.307(c)(3)(C) clarifies that documentation of employment payment may include provider billing statements or like documents in addition to copies of receipts.

Amended §133.307(d) adds language to specify that the response to a request for MDR must be submitted to the Division and to the requestor.

Amendments to §133.307(d)(2)(A)(i) and (ii) specify that the carrier's response to a request for MDR shall also include all initial and reconsideration EOBs in a paper explanation of benefits format and a copy of all medical bills in a paper billing format using an appropriate DWC approved paper billing format.

The amendment to §133.307(d)(3)(A) clarifies that any documentation, including medical bills, shall be in a paper billing format using an appropriate DWC approved billing format.

Amendments to subsection §133.307(e)(1) specify that when additional information is requested by the Division, the party providing the additional information must also send a copy of the information to all other parties at the time it is submitted to the Division.

Amended §133.307(e)(3)(J) adds that the Division may determine that good cause exists to dismiss a request for a parties' failure to comply with the provisions of that section.

New §133.307(f) introduces another level of administrative hearings into the MDR process that allow a hearing either before SOAH or through the Division's contested case hearing process. Language changes are adopted to reflect the new appeal process, to update statutory citations, and to be consistent with language in §133.308.

Under new §133.307(f)(1), parties to fee disputes in which the amount of reimbursement sought by the requestor in its request is greater than $2,000 may request a hearing before SOAH. New §133.307(f)(1)(A) says that to request a contested case hearing before SOAH, a party shall file a written request for a SOAH hearing with the Division's Chief Clerk of Proceedings in accordance with 28 TAC §148.3. New §133.307(f)(1)(B) requires the party seeking review of the MDR decision to deliver a copy of its written request for a hearing to all other parties involved in the dispute at the same time the request for hearing is filed with the Division.

Under new §133.307(f)(2), parties to fee disputes in which the amount of reimbursement sought by the requestor in its request is less than or equal to $2,000 may appeal the MDR decision by requesting a contested case hearing held by the Division. New §133.307(f)(2)(A) says that to request a Division contested case hearing, a written request for a Division contested case hearing must be filed with the Division's Chief Clerk no later than the later of the 20th day after the effective date of this section or the 20th day after the date on which the decision is received by the appealing party; that the request must be filed in compliance with Division rules; and that the party appealing the decision shall deliver a copy of its written request for a hearing to all other parties involved in the dispute at the same time the request for a hearing is filed with the Division. New §133.307(f)(2)(B) notes that requests that are timely submitted to a Division location other than the Division's Chief Clerk, such as a local field office of the Division, will be considered timely filed and forwarded to the Chief Clerk for processing; however, this may result in a delay in the processing of the request; and that any decision that is not timely appealed becomes final. To avoid overlap with 28 TAC Chapter 148, the previous §133.307(h) has been moved to subsection §133.307(f)(2)(C) and is made applicable only to Division contested case hearings. New §133.307(f)(2)(C) changes the words "clerical correction" to "correction of a clerical" and the words "clerical correction" to "correction of a clerical error." New §133.307(f)(2)(D) says that at a Division contested case hearing under this paragraph, parties may not raise issues regarding liability, compensability, or medical necessity at a contested case hearing for a medical fee dispute. New §133.307(f)(2)(E) says that except as otherwise provided in the section, a Division contested case hearing shall be conducted in accordance with Chapters 140 and 142 of Title 28. Amendments to renumbered §133.307(f)(2)(F) reflect the new appeal process. Amendments to renumbered §133.307(f)(2)(G) clarify that the costs of preparing a certified record of hearing shall be the responsibility of the party seeking judicial review, and that 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.

New §133.308(a)(1) specifies that the section is applicable to independent review of network and non-network preauthorization, concurrent, or retrospective medical necessity disputes that are remanded to the Division or filed on or after May 25, 2008. Subsection (a)(1) further provides that except as provided in paragraph (2) of the subsection, dispute resolution requests filed prior to May 25, 2008, shall be resolved in accordance with the statutes and rules in effect at the time the request was filed.

New §133.308(a)(2) specifies that paragraph (1) of subsection (t) of the section applies to the independent review of network and non-network preauthorization, concurrent, or retrospective medical necessity disputes for a dispute resolution request that is pending for adjudication by the Division on September 1, 2007; remanded to the Division on or after September 1, 2007; or filed on or after September 1, 2007.

New §133.308(a)(3) says that when applicable, retrospective medical necessity disputes shall be governed by the provisions of Labor Code §413.031(n) and related rules.

New §133.308(a)(4) says 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.

An amendment to §133.308 creates a new subsection (c), which establishes that an IRO that uses doctors to perform reviews of health care services provided under §133.308 may only use doctors licensed to practice in Texas.

An amendment to §133.308 creates a new subsection (d), which specifies that an IRO doctor, other than a dentist or a chiropractor, performing a review under §133.308 shall be a doctor who would typically manage the medical or dental condition, procedure, or treatment under consideration for review, and who is qualified by education, training and experience to provide the health care reasonably required by the nature of the injury to treat the condition until further material recovery from or lasting improvement to the injury can no longer reasonably be anticipated. A dentist meeting the requirements of subsection (c) of this section may perform a review of a dental service under this section, and a chiropractor meeting the requirements of subsection (c) of this section may perform a review of a chiropractic serviced under this section. Further, nothing in the subsection can be construed to limit an injured employee's ability to receive health care in accordance with the Labor Code and Division rules or to limit a review of health care to only health care provided or requested prior to the date of maximum medical improvement. Amendments renumber the sections which follow accordingly.

Amendments to renumbered §133.308(i) clarify that a requestor shall file a request for independent review with the insurance carrier that actually issued the adverse determination or the carrier's utilization review agent that actually issued the adverse determination no later than the 45th calendar day after receipt of the denial of reconsideration, and clarify that a carrier shall notify the Department of a request for independent review within one working day from the date the request is received by the carrier or its URA.

Amendments to §133.308 in renumbered subsections (k) and (p)(1)(F) remove references to Insurance Code Articles 21.58C and 21.58A, which have been recodified as TIC Chapters 4202 and 4201.

An amendment to renumbered §133.308(h)(2) corrects a punctuation error.

An amendment to renumbered §133.308(j)(2) changes the phrase "individual or entity requesting medical necessity dispute resolution" to "requestor," and an amendment to paragraph (5) in renumbered subsection (j) reflects the fact that subsection (g) is renumbered as subsection (i).

An amendment to renumbered §133.308(l)(2) and (3) adds that the documentation submitted by the carrier or carrier's URA shall include all medical records of the employee in the possession of the carrier or the URA that are relevant to the review, including any medical records used by the carrier or the URA in making the determinations to be reviewed by the IRO and all documents, guidelines, policies, protocols and criteria used by the carrier or the URA in making the decision.

In regard to non-network retrospective medical necessity dispute resolution when reimbursement was denied for health care paid by the employee, an amendment in renumbered §133.308(r) clarifies that IRO fees are to be remitted to the assigned IRO by the carrier. An amendment in renumbered subsection (r)(9) states that §133.308 shall not be deemed to require an employee to pay for any part of a review, and that if application of a provision of the section would require an employee to pay for part of the cost of a review, that the cost shall instead be paid by the carrier.

An amendment to renumbered §133.308(t) specifies that in a contested case hearing, 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. Amendments to renumbered §133.308(t)(1)(A) and (B), introduce another level of administrative hearings into the MDR process that allow a hearing either before SOAH or through the Division's contested case hearing process.

Under the amendments, parties to retrospective medical necessity disputes in which the amount billed is greater than $3,000 may request a hearing before the SOAH by filing a written request for a SOAH hearing in accordance with 28 TAC §148.3 (relating to Requesting a Hearing); and parties to retrospective medical necessity disputes in which the amount billed is less than or equal to $3,000 dollars or who are appealing an IRO decision regarding determination of the concurrent or prospective medical necessity for a health service may appeal the IRO decision by requesting a Division contested case hearing.

Amended (t)(1)(A) specifies that a party to a retrospective medical necessity dispute in which the amount billed is greater than $3,000 may request a hearing before the State Office of Administrative Hearings (SOAH) by filing a written request for a SOAH hearing with the Division's Chief Clerk of Proceedings in accordance with §148.3 of this title (relating to Requesting a Hearing), the party appealing the IRO decision shall deliver a copy of its written request for a hearing to all other parties involved in the dispute, and the IRO is not required to participate in the SOAH hearing or any appeal.

Amended 133.308(t)(1)(B) specifies that a party to a retrospective medical necessity dispute in which the amount billed is less than or equal to $3,000 or an appeal of an IRO decision regarding determination of the concurrent or prospective medical necessity for a health care service may appeal the IRO decision by requesting a Division contested case hearing conducted by a hearing officer at the Division, and that a benefit review conference is not a prerequisite to a Division contested case hearing under the subparagraph. Amended subsection (t)(1)(B)(i) states that a party is required to file an appeal with the Division's Chief Clerk 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; the appeal must be filed in compliance with Division rules; and requests that are timely submitted to a Division location other than the Division's Chief Clerk, such as a local field office of the Division, will be considered timely filed and forwarded to the Chief Clerk for processing; however, this may result in a delay in the processing of the request.