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(a)Applicability. This rule is to be applied as follows. (1)This rule applies to the independent review of prospective or retrospective medical necessity disputes (a review of health care requiring preauthorization or concurrent review, or of health care provided) for which the initial dispute resolution request was filed on or after January 1, 2002. Dispute resolution requests filed prior to January 1, 2002 shall be resolved in accordance with the rules in effect at the time the request was filed. All independent review organizations (IRO's) performing reviews of health care under the Texas Workers' Compensation Act (the Act), regardless of where the independent review activities are based, shall comply with this rule. (2)If there is a medical fee dispute with respect to the health care for which there is a medical necessity dispute, the requestor shall file a request for medical fee dispute resolution pursuant to §133.307 of this title (relating to Medical Dispute Resolution of a Medical Fee Dispute) and a request for medical necessity dispute resolution pursuant to this section. (b)TDI Rules. Each IRO performing independent review of health care provided in the workers' compensation system shall be certified by TDI pursuant to article 21.58C, and must comply with TDI rules regarding General Provisions and Certification of IROs, Title 28, Part 1, Chapter 12, Subchapters A and B. In addition, TDI rules in Title 28, Part 1, Chapter 12, Subchapters C through F apply, with these modifications to TDI rules for workers' compensation cases: (1)where the agency name "Texas Department of Insurance" or "TDI" is used in those TDI rules, it shall mean the Texas Workers' Compensation Commission. (2)where the word "patient" is used in those TDI rules, it shall mean the injured employee. (3)where any of the terms "health insurance carrier", "health maintenance organization", or "managed care entity" are used in those TDI rules, it shall mean the carrier or its agent. (4)the commission rule governs who is notified of the IRO decision. (5)a provider who has been removed from the commission Approved Doctor List is not eligible to direct or conduct independent reviews of workers' compensation cases. (6)the provisions regarding a "life-threatening condition" are not applicable because in the workers' compensation system, emergency health care does not require prospective approval. (7)written screening criteria and review procedures shall also be available to the commission for review and inspection and copying to carry out its duties under the Texas Labor Code and Insurance Code articles 21.58A and 21.58C. (8)the commission rule governs liability for payment of the independent review fee and copy expenses. (9)in addition to confidentiality requirements in those rules, an IRO shall preserve the confidentiality of claim file information that is confidential pursuant to the Texas Labor Code. (10)conflicts of interest will not be screened by TDI; the commission shall screen for conflicts of interest to the extent reasonably possible. (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 and any of the treating providers or any of the providers who reviewed the case for determination prior to referral to the IRO.) (c)Parties. The following persons are allowed to be requestors and respondents in medical necessity dispute resolution: (1)in a retrospective necessity dispute--the provider who was denied payment for health care rendered, the employee denied reimbursement for health care for which the employee paid, and the carrier. (2)in a prospective preauthorization dispute--persons or entities as established in §134.600 of this title (relating to Procedure for Requesting Pre-Authorization of Specific Treatments and Services). (3)in a prospective concurrent review dispute--the provider and the carrier. (d)Requests. A request for independent review of a medical necessity dispute must be complete and must be timely filed by the requestor, with the carrier and the division. An employee may file a request for independent review of a preauthorization prospective necessity dispute with the division. (e)Timeliness. A person or entity who fails to timely file with the carrier a request for medical necessity dispute resolution waives the right to independent review or medical dispute resolution. The commission shall deem a request to be filed on the date the division receives a complete request and timeliness shall be determined as follows: (1)A request for retrospective necessity dispute resolution shall be considered timely if it is filed with the carrier and the division: (A)no earlier than the 28th day after the date the requestor had filed the request for reconsideration with the carrier; and (B)no later than 60 days after the date the carrier took final action on the request for reconsideration. (2)A request for prospective necessity dispute resolution shall be considered timely if it is filed with the carrier and the division no later than the 45th day after the date the carrier denied approval of the party's request for reconsideration of denial of health care that requires preauthorization or concurrent review. (f)Complete Request (General). A request for independent review must be filed in the form, format, and manner prescribed by the commission. Each request shall be legible, shall include only a single copy of each document, and shall include: (1)a designation that the request is for review by Independent Review Organization; (2)written notices of adverse determinations (both initial and reconsideration) of prospective or retrospective necessity disputes, if in the possession of the requestor; (3)documentation of the request for and response to reconsideration, or, if the respondent failed to respond to a request for reconsideration, convincing evidence of carrier receipt of that request; (4)for medical necessity disputes: (A)for retrospective necessity disputes, a table of disputed health care denied for lack of medical necessity, which includes complete details of the dispute issues (denial codes T, U or V); or (B)for prospective necessity disputes, a detailed description of the health care requiring preauthorization and/or concurrent review and approval in accordance with §134.600 of this title; (5)a list of any and all providers that have examined or provided health care to the employee during the course of the workers' compensation claim; and (6)a list of all providers that participated in the review or determination of the carrier, if known by the requestor. (g)Carrier Notification to the Commission. The carrier shall complete the remaining sections of the request form and shall provide any missing information required on the form, which shall include: (1)the respondent information; (2)a list of any additional providers that have examined, provided, or rendered health care to the employee at any time during the course of the worker's compensation claim; (3)notices of adverse determinations of prospective or retrospective medical necessity, not provided by the requestor; (4)a list of all providers that participated in the review or determination of the carrier, if known by the requestor; and (5)if the carrier has raised a dispute pertaining to liability for the claim, compensability, or extent of injury, in accordance with §124.2 of this title (relating to Carrier Reporting and Notification Requirements), the requestor shall file with the request, proof that a Benefit Review Conference (BRC) has been requested under Chapter 141 of this title (relating to Benefit Review Conference) by either the employee or the licensed health care provider as a subclaimant. The commission shall adjudicate the medical dispute issues and enter a decision on those issues conditional upon final adjudication of the issues of liability for the claim, compensability, or extent of injury. (h)Filing. The carrier shall file the request with the division by facsimile or other electronic means within three working days of receipt of the request for review by the IRO. (i)TWCC Notification of Parties The commission shall review the request for IRO review, assign an IRO, and notify the parties and the IRO of the assignment. The commission will assign disputes on a rotating basis to the IROs certified by TDI, in accord with Insurance Code article 21.58C and TDI rules. (j)IRO Notification of Parties. The IRO shall also notify the parties of the assignment and require that documentation be sent directly to the assigned IRO and received not later than the seventh day after the party's receipt of the IRO notice. The documentation shall include: (1)any medical records of the injured employee relevant to the review; (2)any documents used by the utilization review agent or carrier in making the decision, to be reviewed by the IRO; and (3)any supporting documentation submitted to the utilization review agent or carrier. (k)Confidentiality. No IRO or provider shall require the written consent of the injured employee as a prerequisite to obtaining medical records relevant to the review. The IRO shall preserve confidentiality of individual medical records as required by law. (l)Additional Information. The IRO may request additional relevant information from either party or from other providers whose records are relevant to the dispute, to review the medical issues in a dispute. The party shall deliver the requested information to the IRO as directed. The additional information must be received by the IRO within 14 days of receipt of the request for additional information. (m)Designated Doctor Exam. In performing a review of medical necessity, an IRO may request that the commission order an examination by a designated doctor and order the employee to attend the examination. The IRO request to the commission must be made no later than 3 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 commission, to arrive no later than three days prior to the scheduled examination. Neither party may communicate with the designated doctor regarding issues not related to the medical dispute. The designated doctor shall complete a report and file it with the IRO, on the form and in the manner prescribed by the commission, no later than seven working days after completing the examination. The designated doctor report shall address all issues the commission instructed the doctor to address. (n)Time Frame for IRO Decision. The IRO will review and render a decision on retrospective medical necessity disputes by the 20th day after the IRO receipt of the dispute. The IRO will review and render a decision on prospective necessity disputes by the 8th day after the IRO receipt of the dispute. If a designated doctor examination has been requested by the IRO, the above time frames begin from the date of the IRO receipt of the designated doctor report. (o)IRO Notification of Decision. An IRO shall notify and provide a copy of the decision to the parties and the commission of a decision made in an independent review. (1)the notification must include a certification by the IRO that the reviewing provider has certified that no known conflicts of interest exist between that provider and any of the treating providers or any of the providers who reviewed the case for determination prior to referral to the IRO. (2)the notification in a retrospective necessity dispute must be mailed or otherwise transmitted not later than the 20th day after the IRO receipt of the dispute. The notification in a prospective necessity dispute must be delivered not later than the 8th day after the IRO receipt of the dispute. (3)the notification to the commission shall also include certification of the date and means by which the decision was sent to the parties. (4)an IRO decision is deemed to be a commission decision and order. (5)If an IRO decision finds that medical necessity exists for care that the carrier denied, and the carrier utilized the opinion of a peer review or other case review to issue its denial, the review and its rational shall not be used on subsequent denials in that claim as the IRO has already found it unconvincing. (p)Commission Posting. The commission shall post the IRO decision on the commission Internet website after confidential information has been redacted. (q)IRO Billing. The IRO shall bill for the independent review. (1)In a retrospective necessity dispute other than an employee reimbursement dispute, and in a concurrent review prospective necessity case, the IRO shall bill the non-prevailing party: (A)if the IRO decision as to the main issue in dispute is a finding of medical necessity, the requestor is the prevailing party. (B)if the IRO decision does not find medical necessity with respect to the main issue in dispute, the respondent is the prevailing party. (C)if the IRO decision does not clearly determine the prevailing party, the IRO shall request the commission to advise the IRO of the allowable fees for the health care in dispute, and the party who prevailed as to the majority of the fees for the disputed health care is the prevailing party. (2)In an employee reimbursement dispute and in a preauthorization prospective necessity dispute, the IRO shall bill the carrier. (3)The IRO shall bill copy expenses to the party billed for the independent review; provided, however, that no copy costs shall be paid to the requestor. (4)The injured employee shall not be required to pay any portion of the cost of a review. (5)Designated doctor examinations ordered by the commission at the request of an IRO shall be paid by the carrier in accordance with the appropriate fee guideline. (6)Receipt of an IRO bill to pay for independent review is deemed to be receipt of a commission order to pay the fee. (7)IRO fees will be paid in the same amounts as those set by TDI rules for tier one and tier two fees. In addition to the specialty classifications established as tier two fees in TDI rules, independent review by a doctor of chiropractic shall be paid the tier two fee. (8)If the fee has not been received by the IRO within 30 days of the IRO bill, the IRO shall notify the commission and the commission shall issue an order to pay the IRO fee. (9)Failure to pay or refund the IRO fee may result in enforcement action as allowable by statute and rules and/or restriction of future requests for independent review. (10)The party required to pay the IRO fee is liable for that fee upon receipt of the bill from the IRO, regardless of whether an appeal of the IRO decision has been or will be filed. (11)if the IRO decision is subsequently reversed at a CCH or by a SOAH decision, the commission shall order a refund of the IRO fee to the party who prevailed by CCH or SOAH decision. (12)the requestor may be liable for the IRO fee if the request is withdrawn or the review is terminated prior to completion. (r)Defense. It is a defense for the carrier if the carrier timely complies with the IRO decision with respect to the medical necessity or appropriateness of health care for an injured employee. If a previously timely filed request for fee dispute resolution exists at the time the IRO issues a decision of medical necessity, the carrier is not required to pay for the disputed health care until the commission has resolved the medical fee dispute. If there is no previously pending request for medical fee resolution, the carrier shall immediately comply with the IRO decision. (s)Unresolved Fee Disputes. If an unresolved fee dispute issue exists at the time the commission receives the IRO decision in a dispute, the commission shall then proceed to resolve the medical fee dispute in accord with commission rules. (t)Appeal. Except with respect to a prospective necessity dispute regarding spinal surgery, a party to a prospective or retrospective necessity dispute may appeal the IRO decision by filing a written request for a SOAH hearing with the commission Chief Clerk of Proceedings, Division of Hearings in accordance with §148.3 of this title (relating to Requesting a Hearing). (1)The appeal must be filed no later than 20 days from the date the party received the IRO decision. (2)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. (3)The commission shall file the request for hearing with SOAH. (4)The hearing shall be conducted by the State Office of Administrative Hearings within 90 days of receipt of a request for a hearing in the manner provided for a contested case under Chapter 2001, Government Code (the administrative procedure law). (5)The parties to the dispute must represent themselves before SOAH, and the IRO is not required to participate in the SOAH hearing. Cont'd...
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