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(a)Applicability. The applicability of this section is as follows. (1)This section applies to the independent review of network and non-network preauthorization, concurrent, or retrospective medical necessity disputes that is remanded to the Division or filed on or after May 25, 2008. Except as provided in paragraph (2) of this 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. (2)Paragraph (1) of subsection (t) of this 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: (A)pending for adjudication by the Division on September 1, 2007; (B)remanded to the Division on or after September 1, 2007; or (C)filed on or after September 1, 2007. (3)When applicable, retrospective medical necessity disputes shall be governed by the provisions of Labor Code §413.031(n) and related rules. (4)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. (b)IRO Certification. Each IRO performing independent review of health care provided in the workers' compensation system shall be certified pursuant to Insurance Code Chapter 4202. (c)Professional licensing requirements. Notwithstanding Insurance Code Chapter 4202, an IRO that uses doctors to perform reviews of health care services provided under this section may only use doctors licensed to practice in Texas. (d)Professional specialty requirements. Notwithstanding Insurance Code Chapter 4202, an IRO doctor, other than a dentist or a chiropractor, performing a review under this section 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 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 service under this section. Nothing in this 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. (e)Conflicts. Conflicts of interest will be reviewed by the Department consistent with the provisions of the Insurance Code §4202.008, Labor Code §413.032(b), §12.203 of this title (relating to Conflicts of Interest Prohibited), and any other related rules. Notification of each IRO decision must include a certification by the IRO that the reviewing provider has certified that no known conflicts of interest exist between that provider, the employee, any of the treating providers, or any of the providers who reviewed the case for determination prior to referral to the IRO. (f)Monitoring. The Division will monitor IROs under Labor Code §§413.002, 413.0511, and 413.0512. The Division shall report the results of the monitoring of IROs to the Department on at least a quarterly basis. (g)Requestors. The following parties may be requestors in medical necessity disputes: (1)In network disputes: (A)health care providers (providers), or qualified pharmacy processing agents acting on behalf of a pharmacy, as described in Labor Code §413.0111, for preauthorization, concurrent, and retrospective medical necessity dispute resolution; and (B)employees for preauthorization, concurrent, and retrospective medical necessity dispute resolution. (2)In non-network disputes: (A)providers, or qualified pharmacy processing agents acting on behalf of a pharmacy, as described in Labor Code §413.0111, for preauthorization, concurrent, and retrospective medical necessity dispute resolution; and (B)employees for preauthorization and concurrent medical necessity dispute resolution; and, for retrospective medical necessity dispute resolution when reimbursement was denied for health care paid by the employee. (h)Requests. A request for independent review must be filed in the form and manner prescribed by the Department. The Department's IRO request form may be obtained from: (1)the Department's Internet website at www.tdi.state.tx.us; or (2)the Health and Workers' Compensation Network Certification and Quality Assurance Division, Mail Code 103-6A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. (i)Timeliness. A requestor shall file a request for independent review with the insurance carrier (carrier) that actually issued the adverse determination or the carrier's utilization review agent (URA) that actually issued the adverse determination no later than the 45th calendar day after receipt of the denial of reconsideration. The carrier shall 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 a preauthorization or concurrent review dispute request, an employee with a life-threatening condition, as defined in §133.305 of this subchapter (relating to MDR--General), is entitled to an immediate review by an IRO and is not required to comply with the procedures for a reconsideration. (j)Dismissal. The Department may dismiss a request for medical necessity dispute resolution if: (1)the requestor informs the Department, or the Department otherwise determines, that the dispute no longer exists; (2)the requestor is not a proper party to the dispute pursuant to subsection (g) of this section; (3)the Department determines that the dispute involving a non-life-threatening condition has not been submitted to the carrier for reconsideration; (4)the Department has previously resolved the dispute for the date(s) of health care in question; (5)the request for dispute resolution is untimely pursuant to subsection (i) of this section; (6)the request for medical necessity dispute resolution was not submitted in compliance with the provisions of this subchapter; or (7)the Department determines that good cause otherwise exists to dismiss the request. (k)IRO Assignment and Notification. The Department shall review the request for IRO review, assign an IRO, and notify the parties about the IRO assignment consistent with the provisions of Insurance Code §4202.002(a)(1), §1305.355(a), Chapter 12, Subchapter F of this title (related to Random Assignment of Independent Review Organizations), any other related rules, and this subchapter. (l)Carrier Document Submission. The carrier or the carrier's URA shall submit the documentation required in paragraphs (1) - (6) of this subsection to the IRO not later than the third working day after the date the carrier receives the notice of IRO assignment. The documentation shall include: (1)the forms prescribed by the Department for requesting IRO review; (2)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; (3)all documents, guidelines, policies, protocols and criteria used by the carrier or the URA in making the decision; (4)all documentation and written information submitted to the carrier in support of the appeal; (5)the written notification of the initial adverse determination and the written adverse determination of the reconsideration; and (6)any other information required by the Department related to a request from a carrier for the assignment of an IRO. (m)Additional Information. The IRO shall request additional necessary information from either party or from other providers whose records are relevant to the review. (1)The party or providers with relevant records shall deliver the requested information to the IRO as directed by the IRO. If the provider requested to submit records is not a party to the dispute, the carrier shall reimburse copy expenses for the requested records pursuant to §134.120 of this title (relating to Reimbursement for Medical Documentation). Parties to the dispute may not be reimbursed for copies of records sent to the IRO. (2)If the required documentation has not been received as requested by the IRO, the IRO shall notify the Department and the Department shall request the necessary documentation. (3)Failure to provide the requested documentation as directed by the IRO or Department may result in enforcement action as authorized by statutes and rules. (n)Designated Doctor Exam. In performing a review of medical necessity, an IRO may request that the Division require an examination by a designated doctor and direct the employee to attend the examination pursuant to Labor Code §413.031(g) and §408.0041. The IRO request to the Division must be made no later than 10 days after the IRO receives notification of assignment of the IRO. The treating doctor and carrier shall forward a copy of all medical records, diagnostic reports, films, and other medical documents to the designated doctor appointed by the Division, to arrive no later than three working days prior to the scheduled examination. Communication with the designated doctor is prohibited regarding issues not related to the medical necessity dispute. The designated doctor shall complete a report and file it with the IRO, on the form and in the manner prescribed by the Division no later than seven working days after completing the examination. The designated doctor report shall address all issues as directed by the Division. (o)Time Frame for IRO Decision. The IRO will render a decision as follows: (1)for life-threatening conditions, no later than eight days after the IRO receipt of the dispute; (2)for preauthorization and concurrent medical necessity disputes, no later than the 20th day after the IRO receipt of the dispute; (3)for retrospective medical necessity disputes, no later than the 30th day after the IRO receipt of the IRO fee; and (4)if a designated doctor examination has been requested by the IRO, the above time frames begin on the date of the IRO receipt of the designated doctor report. (p)IRO Decision. The decision shall be mailed or otherwise transmitted to the parties and to representatives of record for the parties and transmitted in the form and manner prescribed by the Department within the time frames specified in this section. (1)The IRO decision must include: (A)a list of all medical records and other documents reviewed by the IRO, including the dates of those documents; (B)a description and the source of the screening criteria or clinical basis used in making the decision; (C)an analysis of, and explanation for, the decision, including the findings and conclusions used to support the decision; (D)a description of the qualifications of each physician or other health care provider who reviewed the decision; (E)a statement that clearly states whether or not medical necessity exists for each of the health care services in dispute; (F)a certification by the IRO that the reviewing provider has no known conflicts of interest pursuant to the Insurance Code Chapter 4201, Labor Code §413.032, and §12.203 of this title; and (G)if the IRO's decision is contrary to: (i)the Division's policies or guidelines adopted under Labor Code §413.011, the IRO must indicate in the decision the specific basis for its divergence in the review of medical necessity of non-network health care; or (ii)the network's treatment guidelines, the IRO must indicate in the decision the specific basis for its divergence in the review of medical necessity of network health care. (2)The notification to the Department shall also include certification of the date and means by which the decision was sent to the parties. (q)Carrier Use of Peer Review Report after an IRO Decision. If an IRO decision determines that medical necessity exists for health care that the carrier denied and the carrier utilized a peer review report on which to base its denial, the peer review report shall not be used for subsequent medical necessity denials of the same health care services subsequently reviewed for that compensable injury. (r)IRO Fees. IRO fees will be paid in the same amounts as the IRO fees set by Department rules. In addition to the specialty classifications established as tier two fees in Department rules, independent review by a doctor of chiropractic shall be paid the tier two fee. IRO fees shall be paid as follows: (1)In network disputes, a preauthorization, concurrent, or retrospective medical necessity dispute for health care provided by a network, the carrier must remit payment to the assigned IRO within 15 days after receipt of an invoice from the IRO; (2)In non-network disputes, IRO fees for disputes regarding non-network health care must be paid as follows: (A)in a preauthorization or concurrent review medical necessity dispute or retrospective medical necessity dispute resolution when reimbursement was denied for health care paid by the employee, the carrier shall remit payment to the assigned IRO within 15 days after receipt of an invoice from the IRO. (B)in a retrospective medical necessity dispute, the requestor must remit payment to the assigned IRO within 15 days after receipt of an invoice from the IRO. (i)if the IRO fee has not been received within 15 days of the requestor's receipt of the invoice, the IRO shall notify the Department and the Department shall dismiss the dispute with prejudice. (ii)after an IRO decision is rendered, the IRO fee must be paid or refunded by the nonprevailing party as determined by the IRO in its decision. (3)Designated doctor examinations requested by an IRO shall be paid by the carrier in accordance with the medical fee guidelines under the Labor Code and related rules. (4)Failure to pay or refund the IRO fee may result in enforcement action as authorized by statute and rules and removal from the Division's Approved Doctor List. (5)For health care not provided by a network, the non-prevailing party to a retrospective medical necessity dispute must pay or refund the IRO fee to the prevailing party upon receipt of the IRO decision, but not later than 15 days regardless of whether an appeal of the IRO decision has been or will be filed. (6)The IRO fees may include an amended notification of decision if the Department determines the notification to be incomplete. The amended notification of decision shall be filed with the Department no later than five working days from the IRO's receipt of such notice from the Department. The amended notification of decision does not alter the deadlines for appeal. (7)If a requestor withdraws the request for an IRO decision after the IRO has been assigned by the Department but before the IRO sends the case to an IRO reviewer, the requestor shall pay the IRO a withdrawal fee of $150 within 30 days of the withdrawal. If a requestor withdraws the request for an IRO decision after the case is sent to a reviewer, the requestor shall pay the IRO the full IRO review fee within 30 days of the withdrawal. (8)In addition to Department enforcement action, the Division may assess an administrative fee in accordance with Labor Code §413.020 and §133.305 of this subchapter. (9)This section shall not be deemed to require an employee to pay for any part of a review. If application of a provision of this section would require an employee to pay for part of the cost of a review, that cost shall instead be paid by the carrier. (s)Defense. A carrier may claim a defense to a medical necessity dispute if the carrier timely complies with the IRO decision with respect to the medical necessity or appropriateness of health care for an employee. Upon receipt of an IRO decision for a retrospective medical necessity dispute that finds that medical necessity exists, the carrier must review, audit, and process the bill. In addition, the carrier shall tender payment consistent with the IRO decision, and issue a new explanation of benefits (EOB) to reflect the payment within 21 days upon receipt of the IRO decision. (t)Appeal. A decision issued by an IRO is not considered an agency decision and neither the Department nor the Division are considered parties to an appeal. 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. Appeals of IRO decisions will be as follows: (1)Non-Network Appeal Procedures. A party to a medical necessity dispute may seek review of a dismissal or decision as follows: Cont'd...
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