Amended §134.600 deletes existing (m)(1) - (5) which outlined the elements that were required to be included in a denial of medical necessity. The requirements in existing §134.600(m)(1) are no longer necessary because the notice of adverse determination must comply with the requirements of 28 TAC §19.2009(b). Subsection (m) continues to provide that if preauthorization is denied based on Labor Code §408.0042 because the treatment is for an injury or diagnosis unrelated to the compensable injury, the notice of adverse determination must include notification to the injured employee and health care provider of entitlement to file an extent of injury dispute in accordance with 28 TAC Chapter 141 concerning Dispute Resolution--Benefit Review Conference.

Amended §134.600(o) provides that if the initial response to preauthorization or concurrent utilization review is an adverse determination, the requestor or injured employee may request reconsideration orally or in writing. Amended §134.600(o) is necessary to conform with Insurance Code §1305.354, concerning Reconsideration of Adverse Determination. Further, amended §134.600(o) conforms to the requirement that a request for reconsideration under §134.600(o) constitutes an appeal for the purposes of 28 TAC §19.2011. The term "appeal" is defined in 28 TAC §19.2003(b)(2). Further, requests for reconsideration must be made in accordance with the requirements of amended §134.600(o) and 28 TAC §19.2011.

Amended §134.600(o)(3) adds a reference to 28 TAC §19.2011 to clarify an insurance carrier's reconsideration procedures must also comply with 28 TAC §19.2011.

Amended §134.600(o)(4) requires insurance carriers that are questioning the medical necessity or appropriateness of the health care services to comply with the requirements of 28 TAC §19.2010 and §19.2011, including the requirement that the insurance carrier afford the requestor a reasonable opportunity to discuss the proposed health care with a doctor or, in cases of a dental plan with a dentist, or in cases of a chiropractic service with a chiropractor, prior to the issuance of an adverse determination on the request for reconsideration. This change is necessary to clarify the combined application of §134.600(o)(4) and 28 TAC §19.2010 and §19.2011 to insurance carriers and utilization review agents.

Existing §134.600(v) is deleted because its effective date is no longer necessary.

Section 134.110 specifies the requirements for reimbursement of injured employees for travel expenses incurred by the injured employees, the travel rate that the expenses must be based on by the insurance carrier, and the insurance carrier's responsibility to inform the injured employee of the right to request a benefit review conference if the insurance carrier does not reimburse the full amount requested.

Section 134.502 specifies requirements for the prescription of drugs by doctors and pharmaceutical services provided to injured employees, including submission of bills for pharmacy services, statements of medical necessity by prescribing doctors, and requirements for transmittal of the explanation of benefits (EOB) to injured employees and the prescribing doctor when the insurance carrier denies payment for medications.

Section 134.600 provides the requirements applicable to preauthorization, concurrent utilization review, and voluntary certification of health care. Section 134.600 also specifies the meaning of words and terms when used in Chapter 134, unless the context clearly indicates otherwise.

SUMMARY OF COMMENTS AND AGENCY RESPONSES

General

Comment: One commenter greatly appreciates and supports the changes because they offer enhanced clarity.

Agency Response: The Division appreciates the supportive comment.

Comment: One commenter states that the rules make utilization review more burdensome and expensive from an administrative standpoint, which is not the most effective way to satisfy the mandate to control medical costs in the workers' compensation system. The commenter thinks the rules should have been written to follow existing Division rule language and conform to the Labor Code.

Agency Response: The Division asserts that these rules are necessary to implement HB 4290. Insurance Code Chapter 4201, to the extent not in conflict with Labor Code Title 5 or Insurance Code Chapter 1305, and these provisions apply to workers' compensation utilization review. Additionally, these rules promote efficient regulation of URAs through the alignment of health and workers' compensation URA certification and registration requirements, utilization review timeframes, and utilization review standards. These rules also align utilization review timeframes and standards within workers' compensation for network and non-network claims.

Comment: One commenter suggests that the best way to conform the current proposed rule changes with Subchapter U is to incorporate the commenter's suggested changes to these proposed rules into Subchapter U.

The commenter objects to the references to other codes and rules and the cross-referencing to other sections of this title because they make it difficult to understand what these sections mean without consulting other material. The commenter recommends that the references be revised to specifically explain what the code or rule referred to actually means. The commenter states the proposed rules are lengthy and complex and they should be self-contained rather than reference other rule sections because this change would ensure that system participants can more readily determine their responsibilities under the rules.

Agency Response: The Division declines to make the suggested changes. Amendments to Title 28 Chapter 19, Subchapter U are outside the scope of the amendments to Chapter 134 included in this adoption. The Division declines to delete the references to other codes and rules because an entity that performs utilization review is required to comply with the cited rules and statutes, and inclusion of the entire text of other rules and statutes would be repetitive. The Division has determined that the rules are more streamlined and easier to understand by including cross-references, and also provides notice to URAs that they are subject to the requirements in other rules and statutes.

§134.502

Comment: One commenter supports §134.502(b), which requires a physician who is prescribing drugs to prescribe the drugs in accordance with §134.530 and §134.540 (Closed Drug Formulary). The commenter supports this rule because it will promote the delivery of high quality health care that is reasonably required by the nature of the injury, is clinically appropriate and considered effective for the injured employee's injury and provided in accordance with best practices consistent with evidence-based medicine or, if that evidence is not available, generally accepted standards of medical practice recognized in the medical community.

Agency Response: The Division appreciates the supportive comment and clarifies that amended §134.502(b) clarifies the existing requirement that doctors shall prescribe drugs in accordance with 28 TAC §134.530 and §134.540.

§134.600

Comment: Several commenters assert the definition of "adverse determination" in §134.600(a)(1) conflicts with Insurance Code §4201.002(1) and the standards for health care coverage in the Workers' Compensation Act. The commenters assert that Insurance Code §4201.054(c) mandates that Title 5 of the Labor Code prevails over Insurance Code Chapter 4201 when there is a conflict. The commenters assert Labor Code §408.021 states that the injured worker is entitled to "...all health care reasonably required by the nature of the injury as and when needed" and the term "health care reasonably required" is defined in Labor Code §401.011(22-a). The commenters assert the proposed language suggests that the standard for entitlement to workers' compensation medical treatment is "medically necessary or appropriate" which is not defined in the Workers' Compensation Act and is subject to an interpretation that could differ from the statutory standard of "health care reasonably required." The commenters suggest deleting the words "medically necessary or appropriate" in the definition and inserting the words "reasonably required" in their place.

Agency Response: The Division declines to make the suggested changes. The phrase "medically necessary or appropriate" is consistent with the definition of "adverse determination" under the Insurance Code §4201.002, which defines "adverse determination" as a determination by a URA that health care services provided or proposed to be provided to a patient are not medically necessary or are experimental or investigational. Also, the phrase "medically necessary or appropriate" is used in 28 TAC §12.5(1), which defines "adverse determination" for purposes of independent review. Introducing the phrase "health care reasonably required" would result in inconsistent definitions of "adverse determination" in the context of utilization review and independent review.

Nothing may be construed to limit health care reasonably required under Labor Code §408.021. The Division's position is that, based on Labor Code §408.021, an injured employee under both network and non-network coverage is entitled to health care reasonably required by the nature of the injury as and when needed, including experimental and investigational health care services. For this reason, the Division clarifies that the term "adverse determination" does not include a determination that health care services are experimental or investigational.

Comment: Two commenters support §134.600(a)(9) which defines the term "reasonable opportunity."

Agency Response: The Division appreciates the supportive comments.

Comment: A commenter requests that one working day be further defined in §134.600(a)(9)(A) as at least a 24-hour period in order to give the provider sufficient time to respond to an inquiry from the URA because this change would help ensure that the conversation between the URA and the provider actually takes place.

Agency Response: The Division declines to make the suggested change to the definition of the term "working day." "Working day" is consistent with Insurance Code §4201.002(16) which defines "working day" as "a weekday that is not a legal holiday" and is also consistent with 28 TAC §102.3, concerning Computation of Time, which states that "A working day is any day, Monday-Friday, other than a national holiday as defined by Texas Government Code, §662.003(a) and the Friday after Thanksgiving Day, December 24th and December 26th." A 24-hour period would conflict with the statutory definition and Division rules as one 24-hour period could cover more than one weekday that is not a holiday.

Comment: One commenter suggests a comma be added to §134.600(h) between the words "or" and "based."

One commenter seeks clarification of the meaning of §134.600(h).

Agency response: The Division declines to add a comma between the words "or" and "based" in §134.600(h). The Division agrees to a non-substantive change to clarify §134.600(h) by moving the phrase "issue an adverse determination on each request" and deleting "received by the insurance carrier" to clarify that the insurance carrier shall approve or issue an adverse determination on each request based solely on the medical necessity of the health care required to treat the injury.

Comment: One commenter suggests commas replace semicolons in §134.600(i).

Agency Response: The Division declines to make the suggested changes because the punctuation conforms to current agency style.

Comment: Two commenters think oral requests need to also be in writing to constitute an appeal for the purposes of §19.2011 in §134.600(o).

Agency Response: The Division declines to make the suggested changes. Amended §134.600(o) corresponds with Insurance Code §4201.355 which requires that within five working days from the date the utilization review agent receives the appeal, the agent must send to the appealing party a letter acknowledging the date of receipt and include a list of documents the appealing party must submit for review. Amended §134.600(o) also corresponds with Insurance Code §1305.354 which pertains to the reconsideration of adverse determinations by workers' compensation health care networks that requires that not later than the fifth calendar day after the date of receipt of the request, the network shall send to the requesting party a letter acknowledging the date of the receipt of the request that includes a reasonable list of documents the requesting party is required to submit. Further, Insurance Code §4201.354 requires that the procedures for appealing an adverse determination must provide that the adverse determination may be appealed orally or in writing and is consistent with the requirements of Insurance Code §1305.354 for workers' compensation network coverage. Amended §134.600(o) is necessary to align this proposed section with 28 TAC §19.2011(a)(3) which provides that an injured employee, the injured employee's representative, or the provider of record may appeal the adverse determination orally or in writing. This amendment is also consistent with 28 TAC §10.103 concerning Workers' Compensation Network Requests for Reconsideration.

Comment: Two commenters assert that the phrase in §134.600(o)(4) "where the insurance carrier is questioning" is too vague and not a workable standard.

One commenter suggests changing the language in §134.600(o)(4) to provide "In any instance where an insurance carrier has determined that the insurance carrier may issue an adverse determination..."

One commenter suggests replacing "In any instance where the insurance carrier is questioning" with the language "Prior to the issuance of an adverse determination relating to" in §134.600(o)(4). The commenter believes that whenever a carrier engages in any utilization review it is questioning the necessity or appropriateness of the health care services and this is the essence of utilization review. The commenter thinks that issuance of an adverse decision is a workable standard and it may make sense for a proposed rule to state that prior to issuing an adverse decision, a carrier shall give the provider a reasonable opportunity to discuss the services; however, triggering all these requirements merely because someone is questioning the appropriateness or necessity of services is too vague and represents a misunderstanding of the purpose of utilization review.

Agency Response: The Division declines to make the suggested change. New §134.600(o)(4) is consistent with Insurance Code §4201.206 which uses the phrase "who questions the medical necessity or appropriateness." It is also consistent with Subchapter U. The term "insurance carrier" is used because an entity that conducts utilization review in the workers' compensation system is required to comply with the applicable statutes and regulations to conduct utilization review. The Division recognizes that the party directly responding to a request for retrospective utilization review may be the insurance carrier if the insurance carrier is a certified utilization review agent or the insurance carrier's utilization review agent. Under the definition of agent in §133.2, the system participant who utilizes or contracts with an agent may also be responsible for the administrative violations of that agent.

NAMES OF THOSE COMMENTING FOR AND AGAINST THE SECTIONS

For: CID Management

For, with changes: Office of Injured Employee Counsel, Property Casualty Insurers

Association of America, Insurance Council of Texas, and American Insurance Association

The amendments to §134.502 are adopted under the Labor Code §§402.00111, 402.00114, 402.00116, 402.061, 406.010, 408.021(a), 408.027, 408.028, 408.0281, 413.002, 413.011, 413.0111, 413.013, 413.017, and 413.031 and Insurance Code §4201.054.

Labor Code §402.00111 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority, under the Labor Code. Section 402.00114 requires the division to regulate and administer the business of workers' compensation in this state and ensure that Labor Code, Title 5 and other laws regarding workers' compensation are executed. Section 402.00116 requires the commissioner of workers' compensation to administer and enforce Labor Code Title 5, other workers' compensation laws of this state, and other laws applicable to the division. Section 402.061 provides that the Commissioner of Workers' Compensation shall adopt rules as necessary for the implementation and enforcement of Title 5, Labor Code. Section 406.010 authorizes the division to adopt rules necessary to specify the requirements for carriers to provide claims service and establishes that a person commits a violation if the person violates a rule adopted under this section. Section 408.021(a) states that an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. Section 408.027 establishes the timeframe for a health care provider's claim submission, the timeframes for an insurance carrier's processing of a claim including requests for additional documentation and audit, the reimbursement during the pendency of an audit, and the applicability of §408.027 to all delivered health care. Section 408.028 requires health care practitioners providing care to an employee to prescribe any necessary prescription drugs in accordance with the applicable state law. Section 408.028(b) requires the commissioner by rule to adopt a closed formulary under Labor Code §413.011 and requires the rules adopted to allow an appeals process for claims in which a treating doctor determines and documents that a drug not included in the formulary is necessary to treat an injured employee's compensable injury. Labor Code §408.028(f) requires the commissioner by rule to adopt a fee schedule for pharmacy and pharmaceutical services that will provide reimbursement rates that are fair and reasonable, assure adequate access to medications and services for injured workers, minimize costs to employees and insurance carriers, and take into consideration the increased security of payment afforded by Labor Code Title 5. Labor Code §408.0281 provides prescription medication or services may be reimbursed in accordance with the fee guidelines adopted by the commissioner or at a contract rate in accordance with that section.