(a) - (r)(No change.)
(s)Appeal of IRO decision. A decision issued by an
IRO is not considered an agency decision and neither the department
nor the division is considered a party to an appeal. In a division
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. 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.
A party to a medical necessity dispute may seek review of a dismissal
or decision at a division CCH as follows:
(1)A party to a medical necessity dispute may appeal
the IRO decision by requesting a division CCH conducted by a division
administrative law judge [hearing officer]. A benefit review
conference is not a prerequisite to a division CCH under this subsection.
(A) - (C)(No change.)
(D)At a division CCH, the administrative law
judge [hearing officer] shall consider the treatment
guidelines:
(i) - (iii)(No change.)
(E)(No change.)
(F)A party to a medical necessity dispute who has
exhausted all administrative remedies may seek judicial review of
the division's decision. Judicial review under this paragraph shall
be conducted in the manner provided for judicial review of contested
cases under Chapter 2001, Subchapter G Government Code, and is governed
by the substantial evidence rule. The party seeking judicial review
under this section must file suit not later than the 45th day after
the date on which the division mailed the party the decision of the
administrative law judge [hearing officer]. The mailing
date is considered to be the fifth day after the date the decision
of the administrative law judge [hearing officer]
was filed with the division. A decision becomes final and appealable
when issued by a division administrative law judge [hearing
officer]. If a party to a medical necessity dispute files a
petition for judicial review of the division's decision, the party
shall, at the time the petition is filed with the district court,
send a copy of the petition for judicial review to the division's
Chief Clerk of Proceedings. The division and the department are not
considered to be parties to the medical necessity dispute pursuant
to Labor Code §413.031(k-2) and §413.0311(e).
(G)(No change.)
(2)(No change.)
(t) - (v)(No change.)
The agency certifies that legal counsel has reviewed
the proposal and found it to be within the state agency's legal authority
to adopt.
Filed with the Office
of the Secretary of State on October 17, 2018
TRD-201804539 Nicholas Canaday III
General Counsel
Texas Department of Insurance, Division of Workers' Compensation
Earliest possible date of adoption: December 2, 2018
For further information, please call: (512) 804-4703
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