The Texas Workers' Compensation Commission (the commission) proposes a new rule, §134.303, concerning the 2005 Dental Fee Guideline.

This new rule is proposed to update reimbursement guidelines for dental services provided in the Texas workers' compensation system. The proposed rule establishes new reimbursement guidelines for dental services by applying a multiplier of 200% to the fees listed in the most current Texas Medicaid Dental Fee Schedule. The increase in the multiplier from the current 125% to 200% is intended to strike the proper balance between establishing fair and reasonable guidelines for medical services fees that ensure continuing quality of medical care and achieving effective medical cost control. The proposed new rule severs the dental component of the Medical Fee Guideline, contained within §134.202 of this title, concerning Medical Fee Guideline (MFG) for dental services provided on or after June 1, 2005, and creates a standalone Dental Fee Guideline responsive to current economic indicators in this segment of the medical services market.

Dental fees, as a subset of medical fees, must satisfy the standards for medical fees established in Texas Labor Code §413.011. Subsection (d) of that section requires guidelines for medical services fees to be fair and reasonable and designed to ensure the quality of medical care and to achieve effective medical cost control. The guidelines may not provide for payment of a fee in excess of the fee charged for similar treatment of an injured individual of an equivalent standard of living and paid by that individual or by someone acting on that individual's behalf. The commission must consider the increased security of payment afforded by the Texas Workers' Compensation Act in establishing the fee guidelines.

More recent statutory requirements added to §413.011 of the Texas Labor Code also require that the commission use health care reimbursement policies and guidelines that reflect the standardized reimbursement structures found in other health care delivery systems with minimal modifications to those reimbursement methodologies as necessary to meet occupational injury requirements. In order to achieve standardization, the statute additionally requires the commission to adopt the most current reimbursement methodologies, models, and values or weights used by the federal Health Care Financing Administration (HCFA), (now known as the Centers for Medicare and Medicaid Services (CMS)), including applicable payment policies relating to coding, billing, and reporting, and may modify documentation requirements as necessary to meet the requirements of Texas Labor Code §413.053 (relating to Standards of Reporting and Billing). The commission is required to develop conversion factors or other payment adjustment factors in determining appropriate fees, taking into account economic indicators in health care. However, the commission may not adopt conversion factors or other payment adjustment factors based solely on those factors as developed by the HCFA.

The current reimbursements for professional dental services are established by §134.202(c)(4) of this title, concerning Medical Fee Guideline (MFG). The MFG provides maximum allowable reimbursement (MAR) amounts for health care providers (HCPs) treating injured workers in Texas. For dental treatments and services, the established MAR amount in the MFG is the Texas Medicaid Dental Fee Schedule multiplied by 125%, as the national Medicare system does not provide for reimbursement to professional dental health care providers. The proposed rule increases the multiplier to 200% to ensure continued access to quality dental services.

The proposed rule will be applicable to professional dental services provided on or after June 1, 2005. The proposed rule additionally clarifies that for professional dental services provided August 1, 2003 through May 31, 2005, §134.202 of this title (relating to Medical Fee Guideline) shall be applicable. Professional dental services provided December 1, 1996 through July 31, 2003 shall be reimbursed in accordance with §134.302 of this title, concerning the commission's previous Dental Fee Guideline.

Commission staff met with dental providers to discuss the current reimbursement methodology contained in §134.202 of this title (relating to Medical Fee Guideline). That reimbursement is currently set at 125% of the Texas Medicaid Dental Fee Schedule. The dental representative member of the commission's Medical Advisory Committee offered a sampling of 16 dental procedure codes as representative dental services that might be provided in workers' compensation cases. This sampling information contained preferred provider organization reimbursement amounts and the dental representative's usual, customary, and reasonable (UCR) charges. This data was compared to published dental reimbursement amounts for workers' compensation systems in three other states (Kansas, North Carolina, and Florida). The data reflected that total average reimbursement for the 16 codes ranged from 105% (Florida) to 261% (UCR) of the Texas Medicaid Dental Fee Schedule.

The commission also met with carrier representatives and held a stakeholders meeting. A preproposal rule draft was shared with interested parties prior to the stakeholder meeting. As a result of the October 14, 2004 meeting, the commission requested system participants, providers and carriers, to submit their charge and reimbursement information relating to their 20 most frequently utilized dental codes for the 12-month period prior to the implementation of the current Medical Fee Guideline. The commission received additional significant information from three carriers, the Texas Dental Association, and Medata, a health care information data collection service. The commission also received information from a limited number of providers and payers. This data reflected that total average reimbursement for a larger sampling of 33 dental procedure codes ranged from 206% (TMIC) to 293% (Travis County) of Texas Medicaid Dental Fee Schedule.

Texas Labor Code §413.011 requires the commission to adopt necessary conversion factors or payment adjustment factors to establish fair and reasonable reimbursement in the Texas workers' compensation system. Additionally, the commission must take into account economic indicators in health care and the requirements found in subsection (d) of §413.011. The statute also states that the commission shall not adopt a conversion or payment adjustment factor based solely on those factors developed by the Centers for Medicare and Medicaid Services (formerly HCFA). Consistent with the information received from the system stakeholders, the commission is proposing a new multiplier of 200% to be applied to the most current Texas Medicaid Dental Fee Schedule reimbursement rates for professional dental treatments and services.

In considering subsection (d) of §413.011, the proposed multiplier establishes fair and reasonable reimbursement that is designed to ensure continued access to quality care, along with appropriate medical cost control.

Dental treatments and services are infrequently provided in the workers' compensation system and, as such, are unlikely to be a significant contributor to Texas' high medical costs per claim. The proposed multiplier for dental treatment and services is higher than that of the current Medical Fee Guideline because the multiplier of 125%, as now applied to the Texas Medicaid Dental Fee Schedule, has been determined to be at the lower end of the average reimbursements for the dental procedure codes analyzed by commission staff. The recommended multiplier of 200% has been chosen to ensure continued access to quality dental care for injured workers, and is responsive to the cited economic indicators in this segment of the medical services market.

Proposed new §134.303 establishes reimbursements for professional dental treatments and services. The proposed new rule provides standardized reimbursement methods and billing procedures by aligning the workers' compensation reimbursement structure with the structures used by CMS and the Texas Medicaid Program.

Proposed subsection (a) of the rule establishes the applicability of this guideline to reimbursements for professional dental services provided on or after June 1, 2005. The proposed rule additionally clarifies that for professional dental services provided August 1, 2003 through May 31, 2005, §134.202 of this title (relating to Medical Fee Guideline) shall be applicable. Professional dental services provided December 1, 1996 through July 31, 2003 shall be reimbursed in accordance with §134.302 of this title, concerning the commission's previous Dental Fee Guideline. Specific provisions contained in the Texas Workers' Compensation Act and commission rules shall take precedence over any provision adopted or utilized by Texas Medicaid in administering the Texas Medicaid Dental Fee Schedule. Proposed subsection (a) establishes that Independent Review Organization (IRO) decisions regarding medical necessity are made on a case-by-case basis. The commission will monitor IRO decisions to determine whether commission rulemaking action would be appropriate. Proposed subsection (a) additionally provides that whenever a component of the Texas Medicaid Dental Fee Schedule is revised and effective, use of the revised component shall be required for compliance with commission rules, decisions and orders for services rendered on or after the effective date of the revised component. This will prevent the proposed rule from falling out of synchronization with the Texas Medicaid Dental Fee Schedule and will achieve the standardization goals established in Texas Labor Code §413.011.

Proposed subsection (b) of the rule requires system participants to utilize the Texas Medicaid Dental Fee Schedule, including its coding, billing, reporting, and reimbursement of dental treatments and services, in effect on the date a service is provided, with further application of any additions or exceptions in this section. This allows for the basic reimbursements of the Texas Medicaid Dental Fee Schedule to be applied to the Texas workers' compensation system.

Proposed subsection (c) establishes the method to be used for determining the maximum allowable reimbursement (MAR) for dental treatments and services in the Texas workers' compensation system. In establishing the multiplier of 200% to be applied to the current Texas Medicaid Dental Fee Schedule for the rule, the commission considered the statutory requirements and objectives and utilized current commission reimbursement levels, available dental provider payer information, and other states' workers' compensation reimbursements for comparable dental treatment and services.

Proposed subsection (c) also provides that for products and services for which the Texas Medicaid Dental Fee Schedule does not establish a value, the carrier shall assign a relative value, which may be based on nationally recognized published relative value studies, published commission medical dispute decisions, and values assigned for services involving similar work and resource commitments.

If multiple procedures are performed during the same operative session, proposed subsection (d) provides for reimbursement of the procedure with the highest MAR value at 100% of its MAR, and reimbursement for each subsequent procedure at 50% of its MAR value.

Proposed subsection (e) provides that reimbursement for dental laboratory procedures is bundled with the maximum fees for the associated dental procedures. No additional reimbursement shall be due.

Proposed subsection (f) provides that in all cases as established by this rule, reimbursement for dental treatment and services is the lesser of the MAR amount; the healthcare provider's usual and customary charge; or workers' compensation negotiated and/or contracted amount that applies to the billed service(s).

Allen McDonald, Director of the Medical Review Division, has determined that for the first five-year period the proposed rule is in effect, there will be minimal fiscal implications for state or local governments as a result of enforcing or administering the rule.

Local government and state government, as covered regulated entities, will be impacted in the same manner as for persons required to comply with the rule as proposed.

Mr. McDonald has also determined that for each year of the first five years the rule as proposed is in effect, the public benefits anticipated as a result of enforcing the rule will be to ensure access to dental treatments and services for injured workers as a result of raising reimbursements.

Health care providers will benefit from this rule by receiving increased reimbursement for the infrequent provision of dental services in the workers' compensation system.

Employers will benefit from the injured workers' prompt return to work and the potential for decreased premiums.

Carriers will benefit from the injured workers' prompt return to work and decreased indemnity payments.

The increase in the multiplier to be applied to the Texas Medicaid Dental Fee Schedule, from 125% to 200%, will result in a slight increase in total reimbursements for system participants required to comply with the rule. As an example, a major state agency reported the use of only eight dental codes, used a total of nine times, for the 12-month period of August 1, 2002 through July 31, 2003. Based on this reported activity, it is estimated that this major state agency's reimbursement for dental services would increase less than $1,000.

Dental treatments and services are infrequently required in the workers' compensation system. Although the commission has not collected dental billing and reimbursement information, based on information provided by carriers, the commission estimates that total dental reimbursement is less than $5 million per year. Comparatively, this represents less than 0.3% of the greater than $1.6 billion total system medical costs in 2003. Additionally, the commission clarifies that the proposed multiplier of 200% to be applied to the Texas Medicaid Dental Fee Schedule is comparable to the estimated average fair and reasonable reimbursement made under the application of §134.302 of this title (related to Dental Fee Guideline) in effect December 1, 1996 through July 31, 2003.

Consequently, there will be minimal anticipated economic costs to persons who are required to comply with the rule as proposed. It is also anticipated that there will be minimal costs of compliance for small businesses. Accordingly, there will be no adverse economic impact on small businesses or micro-businesses. The minimal costs of compliance for small businesses and micro-businesses as compared to large businesses will be proportionately the same.

Comments on the proposed rule must be received by 5:00 p.m., April 4, 2005. You may comment via the Internet by accessing the commission's website at www.twcc.state.tx.us, clicking on "Rules," and then on "Proposed Rules For Comment." This medium for commenting will help you organize your comments. You may also comment by emailing your comments to RuleComments@twcc.state.tx.us or by mailing or delivering your comments to Linda Velasquez, Legal Services, Mailstop #4-D, Texas Workers' Compensation Commission, 7551 Metro Center Drive, Suite #100, Austin, Texas 78744-1609.

Commenters are requested to clearly identify by number the specific rule and paragraph (e.g., 134.303 (a)(1), 134.303(b)(2), etc.) commented upon. The commission may not be able to respond to comments that cannot be linked to a particular proposed rule. Along with your comment, it is suggested that you include the reasoning for the comment in order for commission staff to fully evaluate your recommendations.

Based upon various considerations, including comments received and the staff's or commissioners' review of those comments, or based upon the commissioners' action at the public meeting, the rule as adopted may be revised from the rule as proposed in whole or in part. Persons in support of the rule as proposed, in whole or in part, may wish to comment to that effect.

Persons in support or opposition of the rule as proposed, in whole or in part, are encouraged to comment to that effect. The failure to comment accordingly is not indicative of support or opposition.

A public hearing on this proposal will be held at the Austin central office of the commission (7551 Metro Center Drive, Suite #100, Austin, Texas 78744-1609) on a date to be announced. Those persons interested in attending the public hearing should contact the Commission's Office of Executive Communication at (512) 804-4430 to confirm the date, time, and location of the public hearing for this proposal. The public hearing schedule will also be available on the commission's website at www.twcc.state.tx.us.

The new rule is proposed under Texas Labor Code §402.061, which authorizes the commission to adopt rules necessary to administer the Act; Texas Labor Code §408.021, which entitles injured employees to all health care reasonably required by the nature of the injury as and when needed; Texas Labor Code §413.002, which requires the commission's Medical Review Division monitor health care providers, insurance carriers and claimants to ensure compliance with commission rules; Texas Labor Code §413.007, which sets out information to be maintained by the commission's Medical Review Division; Texas Labor Code §413.011, which mandates that the commission by rule establish medical policies and guidelines; Texas Labor Code §413.012, which requires review and revision of the medical policies and fee guidelines at least every two years; Texas Labor Code §413.013, which requires the commission by rule to establish programs related to health care treatments and services for dispute resolution, monitoring, and review; Texas Labor Code §413.014, which requires express preauthorization by the insurance carrier for health care treatments and services; Texas Labor Code §413.015, which requires insurance carriers to pay charges for medical services as provided in the statute and requires that the commission ensure compliance with the medical policies and fee guidelines through audit and review; Texas Labor Code §413.016, which provides for refund of payments made in violation of the medical policies and fee guidelines; Texas Labor Code §413.017, which provides a presumption of reasonableness for medical services fees that are consistent with the medical policies and fee guidelines; Texas Labor Code, §413.019, which provides for payment of interest on delayed payments refunds or overpayments; and Texas Labor Code §413.031, which provides a procedure for medical dispute resolution.

The new rule is proposed under the Texas Labor Code §§402.061, 408.021, 413.002, 413.007, 413.011, 413.012, 413.013, 413.014, 413.015, 413.016, 413.017, 413.019, and 413.031.

The previously cited sections of the Texas Labor Code are affected by this proposed rule action. No other code, statute, or article is affected by this proposal.