Proposed new §133.307(e) clarifies that the requestor may withdraw its request for MFDR by notifying the Division prior to a decision.

Section 133.307(f) provides that the Division will review completed requests for MFDR and responses to the requests for MFDR to determine the appropriate action to take in accordance with Labor Code §413.031(c), and provides some of the actions the Division may take. Proposed changes to subsection (f)(3) of this section clarify that the dismissal of a request for MFDR is not a final decision by the Division, and that a request for MFDR dismissed by the Division may be submitted for review as a new dispute that is subject to the requirements of this section. These proposed amendments are intended to clarify that the appropriate procedure for a party that is requesting MFDR after a dismissal is not an appeal of the dismissal, but instead to correct and submit the corrected request as a new request. This language is proposed because the Division wants to be clear that a dismissal of a fee dispute by the Division does not constitute a final decision that may be appealed. This proposed amendment provides clarity to the parties that a requestor does have the opportunity to correct and re-file the request for MFDR and the request will be subject to the provisions in this section.

Proposed subsection (f)(3)(C) of this section clarifies that a request for MFDR will be dismissed if that request contains an unresolved compensability, extent of injury, or liability dispute for the claim.

The proposed amendments also delete from this subsection several grounds that may serve as a basis for a dismissal. Current subsection (f)(3)(A) of this section is proposed for deletion because current rule language states "the requestor informs the Division, or the Division otherwise determines, that the dispute no longer exists"; for the requestor, this provision equates to the requestor "withdrawing" the request and withdrawals are now provided for by proposed subsection (e) of this section. In addition, the Division's determination that a dispute no longer exists is good cause for dismissal. Good cause dismissals are provided for by proposed subsection (f)(3)(E) of this section.

The Division is proposing to delete as grounds for a dismissal those grounds currently listed in subsections (f)(3)(B), (D), and (E) because a Division determination that the requestor is not a proper party, the dispute was previously adjudicated, or a request was untimely are decisions better characterized as final decisions that may be appealed by the requestor. The Division is proposing to delete the ground listed in subsection (e)(3)(F) concerning contractual fee arrangements because under the Act the Division has original jurisdiction to ensure that these contracts comply with applicable statutory requirements and that the pharmacy informal or voluntary network complies with the health care provider notice requirements under Labor Code §408.0281.

Proposed amendments to subsection (f)(4) of this section state that the Division shall send a decision to the disputing parties or to representatives of record for the parties, if any, and post the decision on the Department's website. The Division clarifies that a decision by the Division is final and may be appealed.

Section 133.307(g) governs the appeal of a Division decision in a fee dispute and the proposed amendments to this subsection are intended to conform the appeal procedure in this rule with the changes made by HB 2605 to Labor Code §413.031 and the addition of Labor Code §413.0312. The proposed deletions are made because the provisions are no longer required and to clarify the procedures for the appeal of an MFDR decision in accordance with changes made by HB 2605. As previously stated in this preamble, HB 2605 provides one appeal process for appealing a Division decision in a medical fee dispute. The appealing party is now required to first mediate the dispute at a BRC at the Division. Proposed subsection (g) of this section prohibits parties at a BRC, or at a subsequent SOAH hearing, from raising issues regarding liability, extent, compensability, or medical necessity. This proposed amendment is consistent with other Division rules, including §133.305, which require those issues to be resolved prior to MFDR. Furthermore, proposed subsection (g) of this section provides that the Division's decision in a medical fee dispute is final if a request for a BRC is not requested.

Proposed subsection (g)(1) of this section provides the requirements for a party that wants to request a BRC and requires the appealing party to request the BRC within 20 days from the date of the party's receipt of the decision. This provision is necessary in order to provide for the timely resolution of medical fee disputes.

Consistent with statutory provisions in Labor Code §413.0312(c), proposed subsection (g)(1)(B) of this section prohibits parties at a BRC from resolving the dispute by negotiating fees that are inconsistent with any applicable fee guidelines adopted by the Commissioner of Workers' Compensation.

Proposed §133.307(g)(1)(C) requires that the request for a BRC include a copy of the MFDR decision and provides that this will satisfy the documentation requirements under the Division rules governing BRCs, specifically §141.1(a) of this title (relating to Requesting and Setting a Benefit Review Conference).

Proposed subsection (g)(1)(C) of this section provides that a first responder's request for a benefit review conference must be accelerated by the division and given priority in accordance with Labor Code §504.055. Further, the first responder must provide notice to the division that the case involves a first responder.

Proposed §133.307(g)(2) provides that a first responder's request for arbitration by the Division will be accelerated by the Division and given priority in accordance with Labor Code §504.055. Additionally, proposed subsection (g)(2) provides that the Division will accelerate a first responder's request for a contested case hearing at SOAH. This proposed rule only requires that the request for a SOAH hearing be expedited by the Division and not the SOAH proceeding itself. Finally, this proposed rule states that a first responder must provide notice to the Division that the contested case involves a first responder.

Proposed subsection (g)(2) of this section also provides that if the medical fee dispute remains unresolved after a Division BRC, then the parties may elect to engage in arbitration as provided by Labor Code Chapter 410, Subchapter C, and Chapter 144 of this title (relating to Dispute Resolution--Arbitration). However, if arbitration is not elected then the parties are entitled to request a contested case hearing at SOAH to resolve the dispute in the manner provided for a contested case under Chapter 2001, Government Code.

Proposed §133.307(g)(3) provides that a party to a medical fee dispute who has exhausted all administrative remedies may seek judicial review of the decision of the Administrative Law Judge at SOAH. Finally, proposed subsection (g)(3) of this section incorporates the legislative amendments in SB 809 that require a party seeking judicial review of a decision of SOAH to file suit not later than the 45th day after the date on which SOAH mailed the party the notification of the decision. SB 809 and the proposed amendments deem the mailing date the fifth day after the date the decision was issued by SOAH.

Proposed §133.307(g)(3) also clarifies that a party seeking judicial review of the decision of the administrative law judge shall at the time the petition for judicial review is filed with the district court file a copy of the petition with the division's chief clerk of proceedings. These provisions are proposed in accordance with Government Code §2001.176(b) which requires a copy of the petition to be filed with the agency. This proposed provision is also necessary for the Division to have the necessary information to prepare the record of proceedings for the district court.

In accordance with the requirements of Labor Code §413.0312(k) as added by HB 2605, proposed §133.307(h) provides the procedures for the billing of the non-prevailing party at SOAH. Labor Code §413.0312(k) requires that the Commissioner by rule to establish procedures to enable the Division to charge a party to a medical fee dispute, other than an injured employee, for the costs of services provided by SOAH.

Proposed amendments to §133.308.

This proposal amends the title of this section to be "MDR of Medical Necessity Disputes." The proposed amendments to §133.308(a) provide that the section is applicable to the independent review of medical necessity disputes filed with the Division on or after June 1, 2012. The proposed appeal procedure applies to any decision appealed following an IRO in accordance with the provisions of HB 2605. Accordingly, the amendments to proposed subsection (a) provide that dispute resolution requests filed prior to June 1, 2012 shall be resolved in accordance with the statutes and rules in effect at the time the request was filed. The proposed deletions in §133.308 are necessary to make the rule more current and to comply with the provisions of HB 2605 and SB 809. The proposed amendments also incorporate the legislative amendments in SB 809 that require a party seeking judicial review of a decision of the Division's hearing officer in a medical necessity dispute to file suit not later than the 45th day after the date on which the Division mailed the party the notification of the decision. SB 809 and the proposed amendments deem the mailing date the fifth day after the date the decision of the hearings officer was filed with the Division.

Proposed amendments to §133.308(b) clarify that each IRO performing independent review of health care provided in the workers' compensation system shall also be certified pursuant to Chapter 12 of this title (relating to Independent Review Organizations) which contains Department rules governing the certification of IROs.

Proposed amendments to §133.308(c) clarify that IROs that use doctors to perform reviews of health care services provided under this section may only use doctors licensed to practice in Texas that hold the appropriate credentials under Chapter 180 of this title (relating to Monitoring and Enforcement). The proposed changes to subsection (c) of this section further clarify that personnel employed by or under contract with the IRO to perform independent review shall also comply with the personnel and credentialing requirements under Chapter 12 of this title.

The professional specialty requirements in current §133.308(d) are proposed for deletion because the requirements are now contained in proposed subsection (c) of this section.

The amendments to proposed §133.308(d) add that conflicts of interest will be reviewed by the Department consistent with the provisions of §12.204 and §12.206 of this title (relating to Prohibitions of Certain Activities and Relationships of Independent Review Organizations and Individuals or Entities Associated with Independent Review Organizations, and Notice of Determinations Made by Independent Review Organizations, respectively). Proposed amendments to subsection (d) of this section add language that is consistent with Labor Code §413.032(b) and require that the notification of each IRO decision include a certification by the IRO that the reviewing health care provider has certified that no known conflicts of interest exist between "the injured employee's employer, the insurance carrier, the utilization review agent, any of the treating health care providers, or any of the health care providers utilized by the insurance carrier to review" the case for determination prior to referral to the IRO.

In accordance with the Division's monitoring and investigative duties under the Act, proposed amendments to §133.308(e) clarify that the Division will make inquiries, conduct audits, receive and investigate complaints, and take all actions permitted by the Labor Code and other applicable law against an IRO or personnel employed by or under contract with an IRO to perform independent review to determine compliance with applicable law, this section, and other applicable division rules.

For network disputes, the amendment to proposed §133.308(f)(1)(B) allows a person acting on behalf of an injured employee to be a requestor in medical necessity disputes. Insurance Code §1305.355(a)(1) pertains to networks and independent review and provides that the URA agent shall permit the employee or person acting on behalf of the employee to seek review of the adverse determination in accordance with the provisions of the subsection. Proposed paragraph (2)(B) clarifies that the injured employee's representative may be a requestor in a medical necessity dispute.

Proposed new §133.308(f)(1)(C) and §133.308(f)(2)(C) clarify that subclaimants in accordance with §140.6 of this title (relating to Subclaimant Status: Establishment, Rights, and Procedures), §140.7 of this title (relating to Health Care Insurer Reimbursement under Labor Code §409.0091), or §140.8 of this title (relating to Procedures for Health Care Insurers to Pursue Reimbursement of Medical Benefits under Labor Code §409.0091), as applicable, may be a requestor in a medical necessity dispute.

The department's website address has been updated in proposed §133.308(g) to state "http://www.tdi.texas.gov/". The proposal also updates the name of the office within the department from which a person may obtain an IRO request form to the Managed Case Quality Assurance Office.

In response to an informal public comment received, a proposed amendment to §133.308(k)(6) has been reworded which requires that the insurance carrier or insurance carrier's utilization review agent (URA) to submit documentation that includes "a list of the health care providers known by the insurance carrier to have provided care to the injured employee who have medical records relevant to the review". This provision is intended to assist the IRO reviewer in identifying and requesting any additional documentation that the reviewer may believe is necessary for a complete and thorough review.

Proposed §133.308(o)(1)(F) corrects a typographical error by striking the reference to Insurance Code, Chapter 4201 and correcting the reference to be Insurance Code, Chapter 4202 which pertains to IROs. The proposed deletion of current §133.308(o)(1)(G)(ii) is to conform the rule with the requirements of HB 2605 and delete unnecessary language in the rule.

The Division proposes to delete subsection (p)(1)(G)(ii) which requires an IRO whose decision is contrary to the treatment guidelines adopted by a certified network to indicate in the decision the specific basis for its divergence. The Division proposes this deletion in order to better align subsection (p)(1)(G) with statutes governing reviews by independent review organizations. Additionally, a certified network's treatment guidelines are not presumed reasonable by statute in the same way the treatment guidelines adopted by the Division are which is why Labor Code §413.031 requires an IRO to explain any divergence from the Division's adopted treatment guidelines in non-network disputes.

The proposed deletion of the language "and removal from the Division's Approved Doctor List" from §133.308(q)(2)(4) is because the list no longer exists and the language is no longer necessary.

Amendments to proposed §133.308(s) are made for the purpose of complying with the requirements of HB 2605. HB 2605 provides one appeal process following the decision by an IRO, and this will apply to an IRO review of a medical service provided in a certified network, outside of a certified network, and by a political subdivision pursuant to Labor Code §504.053(b)(2). Proposed §133.308(s) provides the process for those appeals. The language proposed for deletion in §133.308(s) is proposed for the purpose of conforming the rule to the provisions of HB 2605. An amendment to proposed subsection (s) of this section provides that a party to a medical dispute that remains unresolved after a review under Labor Code §504.053(d)(3) or Insurance Code §1305.355 is entitled to a contested case hearing in the same manner as a hearing conducted under Labor Code §413.0311. Proposed §133.308(s)(1)(D) specifies the respective treatment guidelines that the hearing officer at a Division CCH must consider when reviewing the decision by an IRO in accordance with the amendments made by HB 2605 to Insurance Code §1305.356 and Labor Code §504.054.

Proposed §133.308(s)(1)(E)(ii) provides that the "department may at its discretion" forward the party's request for a letter of clarification (LOC) to the IRO that conducted the independent review. Additionally, in order to prevent unnecessary referrals of a request for a LOC to the IRO, the Division is also proposing a provision that provides that the department will not forward to the IRO a request for an LOC that asks the IRO to reconsider its decision or issue a new decision.

Proposed §133.308(s)(1)(F) adds language to comply with the provisions of SB 809 and incorporates the legislative amendments in SB 809 that require a party seeking judicial review of a decision of Division's hearing officer to file suit not later than the 45th day after the date on which the Division mailed the party the decision of the hearing officer. SB 809 and the proposed amendments deem the mailing date the fifth day after the date the decision of the hearing officer was filed with the Division.

Current §133.308(t)(1)(A) and (2) are proposed for deletion because the requirements have been changed by HB 2605 as described by this section.

Current §133.308(u) is proposed for deletion because HB 2605 repealed subsection (l) of Labor Code §413.031 and there is no longer a special carve out for spinal surgery cases. Spinal surgery cases are now addressed as any other case under Labor Code §413.0311 following the changes made by HB 2605.

The addition of §133.308(u) is proposed in accordance with the provisions Labor Code §504.055(d) which requires that a first responder's request for an appeal regarding the denial of a claim for medical benefits, including all health care required to cure or relieve the effects naturally resulting from a compensable injury to be accelerated by the division and given priority. This proposed subsection further provides that a first responder shall provide notice to the division and independent review organization that the contested case hearing or appeal involves a first responder.

Proposed §133.308(v) clarifies the administrative proceedings that may be brought against a violator of this section and is aligned with §12.302 of this title (relating to Administrative Violations).

Finally, the Division has re-lettered provisions in this rule to conform this rule to Texas Register formatting requirements.